In watching the debate about Supreme Court nominees I feel that, as is so often the case, the Right is defining both the language and the terms of the debate. They are arguing that they want someone on the court who merely interprets the Constitution and does not "legislate" from the bench, and that any decisions that break new ground in the interpretation of the Constitution is "legislating'. They further argue that the only true method of interpretation is "strict interpretation of the text" or following the "original intent" of the Constitution.
Liberals, on the other hand argue that they want a Court that will uphold "freedom of choice", that will keep religious based doctrines such as "Intelligent Design" and prayer out of the classroom and that they want a Court that will protect the Civil Liberties of it's citizens. This, in my view, plays right into the hands of Right because it is totally result oriented, and makes no reference to the Constitution, thus lending credence to the argument that what liberals want is a court that legislates. There is, in fact, not a single Supreme Court Justice, now or ever, who would agree that he/she starts out with the result he/she has in mind, but rather would maintain that through a careful analysis of all the facts and law before the court, he/she arrives at whatever conclusion is the necessary end of this reasoning process. In my view, however, the Justice who follows the concept of evolving standards is far more true to the original intent of the framers than the Justice who tries to freeze the Constitution in a time warp, i.e. in the concepts that were in vogue at the time the document was written.
With that in mind, I wrote my dissertation, entitled, "The Supreme Court - Consequences As New Appointees Shift its Balance" which I posted on October 23, 2005 to show that "Original Intent" or for that matter "Strict Interpretation" are not concepts that have any validity, and that in fact, as early as President Washington's day they were already rejected as unworkable and inappropriate; that pushing these concepts now it is an insincere attempt to arrive at the outcomes which the radical Right favors and not an appropriate method of Constitutional interpretation. I also seek to counter the denigration of the term "liberal" and try to deny to the radical Right the label of "conservative".
Friday, October 28, 2005
Sunday, October 23, 2005
The Supreme Court - Consequences As New Appointees Shift Its Balance
Different Approaches to Constitutional Interpretation and Their Consequences
The Changing Court
The debate about the nomination of Harriet Miers, who is now the nominee to replace Justice O’Connor, which follows on the heels of Justice Roberts assuming the post of Chief justice is in the forefront of political discourse; as well it should be, because much is at stake. More than one could tell either from the media or from the interest groups on either side of the debate. Nor can one tell from the debate that there are legal issues involved and not just policy issues.
That is not to say that a judge’s political philosophy and even more important his/her approach to judicial interpretation are not relevant. They are! The difference between a judge who believes in a “living constitution” on the one hand, and one who believes in “original intent” or “strict constructionist” or “an activist judge” on the other, are enormous, but their meaning is often lost in political posturing both by the left and the right, though in my view much more so by the right.
Justice Stevens, one of the “liberal” members of the court, in an address before a Bar association explained the difference between interpreting the law and making policy. In referring to some conclusions he had reached, he explained that he believed that as a matter of policy that the outcomes were:
"unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator….”
In the controversial eminent domain case that allowed the "taking" of private homes for a commercial development in New London, Conn., he said that his decision was:
"entirely divorced from my judgment concerning the wisdom of the program.”
The constitution, in his view gave no basis for finding the conduct of the municipality to be unconstitutional.
Similarly, Justice O’Connor, while dissenting from an opinion of the court that declared the execution of anyone before the age of 18, said:
“Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18”.
Thus if we, and I don’t mean just lawyers, are to join the debate intelligently and not just in sound bites, we must start by reading the relevant portions of the constitution. For example, “A Women’s Right To Choose” may be good policy, but as a matter of Constitutional Law that is not enough. For it to have a constitutional basis we must find its foundation in the Constitution.
But to say that Judges do not necessarily vote for their preferred policy choices and do try to follow the law or the Constitution when handing down decisions is not to say that a judge’s judicial philosophy is not of paramount importance. But before I get into the proper interpretation of judicial philosophy let me begin by more fully exploring what is at stake.
What is at Stake
To listen to the debate one would think that the only thing that is at stake is the Right to an Abortion. As important as that issue is, there is far more at stake. To understand this we must begin by that analysis which lies at the heart of Constitutional interpretation. For example, in discussing Roe vs. Wade one must understand on what provision of the Constitution this decision was based on, and as it may seem, there are few articles in the media which discuss this, or even deem it to be relevant, although it is at the heart of the matter. (For those who wish to read the decision in full it can be found here.)
While the court in Roe vs. Wade refers to other sections of the Constitution it’s primary reliance is on the 9th amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Whether we are deemed to be Strict Constructionists, Originalists, Activists, Liberals or Conservatives, we must still look at the relevant language of the Constitution and if it is not clear we can look at its history. There is virtually no debate among lawyers and judges as to this being the correct way of interpreting any legal document.
With this in mind we look at the language. It is vague! But it is easier to understand if we look at its historic context. When the founders drafted the constitution it did not contain a Bill of Rights. Many opposed its approval on this ground, but others said an enumeration of rights might have the opposite effect of what was intended because it would be impossible to list all the rights that the people have. For that reason the 9th amendment was added to make it clear that the previous eight were not intended to be all-inclusive. At the same time it left open a plethora of uncertainty as to what other rights are to be implied. If none are to be implied then the amendment becomes a nullity. If any are to be implied, they must be found without specific mention in the constitution.
This is where the “Right to Privacy” comes into play and it was not first propounded in Roe vs. Wade. It was first mentioned as long ago as 1891 in Union Pacific R. Co. v. Botsford, 141 U.S. 250 at page 251. Its most important reference to the concept, however, was in Griswold v. Connecticut decided in 1965, and the issue was not whether a woman has a right to an abortion, but whether a law forbidding contraception stood constitutional muster. This was where the concept of privacy as being protected was enunciated most clearly and it formed the basis of that decision.
In 1981, Roberts referred to the "so-called right to privacy…." If he believes, as this might indicate, that there is no such right, and if he is not willing to defer to a precedent that has been reaffirmed by numerous decisions of the court over a period of forty years, (Stare decisis) then not only is the right to an abortion no longer protected, but neither is the right to practice contraception. Many other cases, including a recent one (Lawrence vs. Texas 539 U.S. 558 (2003), which relied more on the equal protection clause of the 14th amendment than on the 9th amendment striking down a Texas law that criminalized homosexual conduct, would be reversed.
Roe v. Wade
While I have said that much more is at stake than the right to abortion, so much controversy has been engendered by this case that a greater understanding than is now generally available appears to be in order. Most people, for instance believe that Roe vs. Wade made all laws that restrict abortion unconstitutional. That is a serious misunderstanding of the holding of the case. The court in its finding said:
“With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
The court then went on to a more specific guide, as follows:
(a) For the stage prior to approximately the end of the first trimester, thr abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The provision of (c), as could be expected, became a bone of contention in a later case where the court upheld a Texas requirement for tests to determine the viability of a fetus where in the doctor’s judgment the fetus was twenty or more weeks of gestational age. While this seems to have been a minor narrowing of the Roe holding, it was considered by many to presage a constant narrowing of the freedom given by Roe.
It is to be noted that the only time that the court allows so called abortion on demand is during the first trisemester. However, opponents argue that even (c) is in effect abortion on demand because they claim a doctor can always be found who will certify a danger to the health of the mother, even if that is only that her mental health will be endangered. More radical elements argue that even the life of the mother is irrelevant because we are simply exchanging one life for another, and they hold to the view of some religious groups, including the Catholic Church that life begins at conception. Most of these same groups also believe that contraception is a sin, which should be proscribed, though they mute this view, recognizing that its promulgation would hurt their abortion fight.
Looking at the court, as it is presently constituted, the addition of Roberts in place of Chief Justice Rehnquist is not likely to lead to an overthrow of Roe vs. Wade since Rehnquist was always opposed to the outcome in Roe. The only Justices now on the court who are committed to overturning the decision in Roe v. Wade are Justices Thomas and Scalia. Thus the replacement of Rehnquist by Roberts would still leave the present line-up intact. The replacement of Justice O’Connor, however, leaves an uncertain landscape because Justice Kennedy is considered to still be on the fence. Thus if O’Connor is replaced by an anti-choice stalwart, and it is not clear where Miers stands, we would have a 4 to 4 line-up with Justice Kennedy becoming the potential swing vote. On the more peripheral issues, however, which bear on how difficult it would be to have access to an abortion, where Justice O’Connor was frequently the swing vote, it is likely that the court would take a more restrictive view of abortion, even if it does not actually over rule Roe.
However, if Justice Stevens, who is now 85 years old, were to retire we would have a whole new court, which could, and probably would, eliminate the concept of privacy from the constitution and thereby reverse not only Roe vs. Wade, and the right to abortion, but Griswold and the right to contraception, and would reinstate laws criminalizing homo-sexual conduct. If these results seem frightening, they could very well be but the tip of the iceberg.
UNDERSTANDING “STRICT CONSTRUCTIONISM”
It is well to begin our discussion with “strict constructionism” because this was an issue that was debated at the dawn of our Constitution. It turned on the creation of the Bank of the United States, which was the brainchild of Alexander Hamilton. Its introduction in the Congress aroused a storm of controversy not only about its wisdom but more fundamentally about its constitutionality. One of its vocal opponents cried:
“This bank is unconstitutional! We have no power to grant a charter to any private corporation!” He went on to point out, “ that a power to grant charters of incorporation had been proposed in the General Convention and rejected.”
Hamilton’s supporters countered by invoking the doctrine of “implied powers.” They argued:
“If Congress may not make laws conformable to the powers plainly implied though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years labor is lost to the public… for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution.”
After Congress passed the bill by a vote of 39 to 20 Washington, who believed that the issue of Constitutionality was a Presidential responsibility, considered vetoing the bill on that ground. To help him reach a conclusion he asked for an opinion from his Attorney General, Edmund Randolph, who viewed it as unconstitutional. Still troubled he asked for opinions from Jefferson and Hamilton. Hamilton carried the day, arguing,
“That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power…”
Washington was convinced and signed the bill into law.
Subsequently, after the Supreme Court established its power to interpret the Constitution in the seminal case of Marbury vs. Madison in 1803, assuming a power that was not specifically granted in the Constitution, but which the court argued was implied and it upheld the formation of the bank in McCullough vs. Maryland in 1819.
Since then the number of times that various branches of government have departed from the strict language of the constitution are legion, but the debate has never entirely ended. However, it is difficult to imagine how the United States would have survived if “strict constructionism” had consistently been followed. It has during the course of history been invoked by whichever side believes that its political agenda is best served by this doctrine or alternatively is served by an interpretation of the constitution which interprets the language of this document in the light of conditions as they exist today. Under a strict interpretation, the power to criminalize the sale and possession of heroin, regulation of child labor, and of wages (the minimum wage and overtime pay) as well as Social Security, Medicare and Medicaid, to mention a few, would be in serious doubt.
UNDERSTANDING “ORIGINAL INTENT”
Original Intent is an even more difficult term to define and apply because it was not debated during the formative period of our Republic. It has, however, become an argument that runs parallel to Strict Constructionism. It’s basic tenet is that in interpreting the Constitution we may not take into account changing conditions in interpreting the Constitution but must be bound by the meaning as it was understood by its framers. The difficulty with this is that the constitution was deliberately left vague so as to satisfy various factions, each of whom would have had a different interpretation of the meaning of the language. In addition, as we have seen, Hamilton, one of the framers of the constitution, and the principal author along with Madison, of the Federalist papers, which was the main instrument in convincing the colonies the adopt the constitution, had an expansionist view of its language.
Furthermore, the constitution now has been amended 27 times. Can we look to the intent of the constitution as it was written or must we look to the intent of the amendments? For instance the fourteenth amendment states,”…; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” At the time it was enacted it was intended to protect the newly emancipated slaves, but it has since then been interpreted to make all ten amendments that constitute the Bill of Rights apply to the States. Original Intent? Probably not, but it does seem to fit into the category of Strict Interpretation, which makes it into an interesting paradox since the term Strict Interpretation and Original Intent are generally used by its proponents as though they were interchangeable. More problematic are the decisions regarding corporations, which in a series of cases beginning as early as 1866 found that corporations were persons within the meaning of the 14th amendment. I do not believe that this conclusion can be justified by any language found anywhere in the constitution. Certainly, the original intent of the 14th amendment was not to protect corporations, nor is there any language anywhere in the constitution that deals with this question. Nevertheless, the court reasoned that a corporation is nothing more than a collection of individuals and therefore has all the rights and immunities of individual persons. Of course corporations are not just a collection of individuals, as are partnerships. They have qualities that individuals do not possess, such as the protection from creditors of individual shareholders; they are also taxed differently from individuals and have economic power that could never be matched by individuals. But does this reasoning fit into either the doctrine of “original intent” or of “strict interpretation”? Yet proponents of those doctrines are not likely to strike them down.
Proponents of this doctrine, who generally want to overturn Roe vs. Wade and most likely Griswold, et al are also conscious that they must justify overturning a precedent of half a century duration. They have come up with the argument that the Dredd Scott decision, (Scott vs. Sanford 1857) is a perfect example of a decision that is so bad that no one could question the desirability of a reversal (They equate it with the decision in Roe vs. Wade which most can agree is a stretch) and they imply that it was, in fact reversed in due course. Its result was without question an affront to all anti-slavery forces, and even to those who sought compromise, but it was not reversed. It was overturned after the Civil War by the 14th amendment.
More important, however, is that under the doctrine of original intent, it was most likely a correct decision. When the Constitution was written both slavery and involuntary servitude were accepted not only in the southern states, but in many northern states as well. While the constitution never uses the word slavery or servitude, its reference to “free persons and 3/5th of all other persons” is clearly a reference to the existence of slaves whose number are to be used for apportionment purposes. Furthermore, even those who abhorred slavery, did not at the time the Constitution was drafted and adopted, envisioned someone of African descent as a citizen, or of having rights such as those held by whites. While by the time of the Dredd Scott decision opinion had changed, particularly in the North, and if the court had taken cognizance of this change in popular opinion, the decision might well have been drastically different. Under the doctrine of “Original Intent,” however, the decision was probably correct. Proponents of “Original Intent,” of course, cannot admit this or their approach would be rejected by the vast majority of Americans. Both “Original Intent” and “Strict Interpretation” if applied consistently would destroy our whole edifice of juridical history and put the U.S. into the 19th and to some extent into the 18th century.
Without the concept of a Living Constitution, and the concept of “evolving standards of decency” which the Supreme Court has relied on, we might still allow corporal punishment, such as branding and whipping.
Understanding the Meaning of Activist Judges
As far as I know no one has ever tried to define this word. It has generally been used as a word of deprecation to define those judges who believe in a living constitution or who interpret the Constitution in the light of existing conditions or create new rights for the American people, such as the right to contraception. Though, as has been shown in relationship to declaring corporations to be persons, albeit artificial ones, judges who normally hold to a so-called strict interpretation are quite capable of deviating from this standard when there values require it.
It seems much more logical, however, to define activist as a judge who does not hesitate to strike down Acts of Congress. Using this standard, we find that it applies more frequently to judges who are considered to be “conservative” rather than to those deemed “liberal.” Using this standard we find the opposite of what most people might assume. It turns out that by this standard Justice Thomas is the most activist judge and Justice Breyer, a judge generally grouped among the liberal four is the least activist. In fact it appears that the Justices presently on the court have during the years that they have been together on the court i.e. 1994, have struck down Acts of Congress as being unconstitutional in the percentages shown below:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
It is evident from this that there is a correlation between being liberal and deferring to our elected representatives, which is the opposite to what we have been led to believe by a barrage of disaffected right wing zealots, who denounce the court whenever it does not rule in accordance with its dictates.
Understanding the Meaning of a Liberal Judge
For most of the decade between the advent of the New Deal of Franklin D. Roosevelt until the rise of the new Right with the election of Ronald Reagan, liberal was a term that was associated with the programs known as the New Deal, which was generally popular and the term was probably embraced by most, who supported the tenants of that program. The term has now fallen out of favor to a large extent because it has been denigrated by those who generally would like to see these social programs dismantled. It most likely also lost its glitter because of its association with many of the excesses of the ’60s. Republican and right wing activists invariably use it as a pejorative term.
Franklin’s Merriam Webster’s electronic dictionary defines liberal as “generous,” “not narrow in opinion or judgment” “tolerant.”
The Encarta Word English dictionary uses these definitions:
1. tolerant of different views and standards of behavior in others
2. favoring gradual reform, especially political reforms that extend democracy, distribute wealth more evenly, and protect the personal freedom of the individual
3. generous with money, time, or some other asset
5. not limited to the literal meaning in translation or interpretation
6. concerned with general cultural matters and broadening of the mind rather than professional or technical study
7. relating to a political ideology of liberalism
8. somebody who favors tolerance or reform
Given these accepted meanings it is hard to understand why the term has fallen out of favor. In political terms, I believe that the definitions of Encarta in 1 and 2 probably best describe its philosophy.
In terms of the Justices of the court, Justices Souter, Stevens, Ginsburg and Breyer are generally described as liberal. They appear to fit not only definition 1 and 2, but as a matter of constitutional interpretation fit the definition of (5), for which they are often criticized, but they would maintain that given the nature of the Constitution, this has not only been a desirable means of interpretation since the early days of the Republic, but has been an absolutely necessary one. They are often accused of making law rather than interpreting it, but as we have seen, other methods of interpretation have not historically been possible. Conservatives have as often placed their own worldview on the Constitution as liberals, e.g. finding corporations to be persons, or enunciating doctrines, as exemplified in the Dredd Scott decision.
Understanding the Meaning of a Comservative Judge
For most of the period since the New Deal and even long before, a conservative was generally considered as one who was pro-business. Conservativism in this sense was deeply ingrained in the Republican Party. For Instance, Calvin Coolidge, The Republican President in the 20s famously said, “The business of America is business." (January 17, 1925) And Dwight Eisenhower’ Secretary of Defense, Charlie Wilson, said, “What is good for General Motors is good for America.” This however is not the dictionary definition of a conservative.
Franklin’s Merriam Webster’s electronic dictionary defines the term as, ”disposed to maintain existing views, conditions, or institutions” and “moderate, cautious.”
The Encarta Word English dictionary uses these definitions:
“in favor of preserving the status quo and traditional values and
customs, and against abrupt change”
“somebody who is reluctant to consider new ideas or accept change”
This is quite different from being pro-business but it nevertheless defined the Republican Party to a large extent during the period from the advent of the New Deal through the inauguration of Ronald Reagan. Republicans and conservatives on the Supreme Court strongly objected to the social and economic innovations of the New Deal (Roosevelt), The Fair Deal (Truman) and the Great Society (Johnson) and on the Court to the innovations the Warren Court, but they urged caution and tried to stop these innovations from coming into force. But they were true conservatives for the most part. Once a new innovation was enacted they accepted it. They weren’t anxious to undo that which had come to be accepted by the American people and the legal profession. Thus, the precedence of Griswold decided in 1965 and its finding of a right of privacy in the Constitution has never been under serious attack for the 40 years since it was first promulgated, though in recent years there has been an increasing minority in favor of “modifying” which probably means eviscerating, rather than outright overruling Roe vs. Wade.
But the new breed of Republican hardly fits the definition of a conservative whether on the court or off. Off the court whether one considers the invasion of Iraq wise or not, it most certainly cannot be described as “moderate, (or) cautious”. Nor can the drastic innovation of huge deficits and huge tax cuts be considered “moderate, (or) cautious” and given the long history of the Republican Party in favor of balanced budgets can this be considered a policy, “in favor of preserving the status quo and traditional values and customs, and against abrupt change”. Nor can the innovations proposed to privatize at least a portion of Social Security be considered to be, “in favor of preserving the status quo and traditional values and customs, and against abrupt change.”
On the court the three “conservative” Justices, have made it clear in their dissents that they are prepared to overturn many precedents with particular emphasis on the right of privacy but also in many of the areas of criminal law. Thus the term radicals would more aptly fit their philosophy, but in an America which by and large is conservative, in the true sense, that is not a label that anyone would willingly accept.
Many believe that a conservative is one who is reluctant to overturn precedent or to invalidate acts of an elected legislature, whether state or federal, but while that certainly is what we would expect from a “true” conservative, the present factions who call themselves, “conservatives” certainly don’t fit that description.
Other Areas That Could and Would be Changed
Since the present minority on the court, (which could become a majority with the investiture of Justice Roberts and the replacement of O’Connor with Miers and would certainly become a majority with the appointment of one more Justices) appears to be hostile to the decisions of the court during the period beginning with the first appointment to the court by Franklin D. Roosevelt, we can best begin to get a picture of the landscape we could be returning to, by looking at the cases that were decided during the preceding period, as well as by looking at the cases that were decided thereafter.
In 1905 the Supreme Court Declared unconstitutional a New York Act limiting the working hours of bakers, holding that such a law was an abridgment of the employers due process rights under the 14th Amendment. The court reasoned that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these “police powers” of the State. (Lochner v. New York, 198 U.S. 45 1905) [This decision was the beginning of a series of decisions that relied on the concept of “substantive due process in which the Court struck down a number of state laws that interfered with an individual’s economic and property rights. Even though this decision was overruled in 1917 in Bunting vs. Oregon 243 U.S. 426 (1917), it is not inconceivable that a court consisting of clones of Scalia and Thomas would return to the doctrine set forth in the Lochner case.
Even though the Bunting case might have suggested that the court had changed direction it soon became apparent that this was not the case when in 1918 The Supreme Court struck down a federal statute forbidding child labor (Hammer v. Dagenhart 247 U.S. 251 (1918)) and in 1923 the Court declared unconstitutional a minimum wage law for women on the grounds that it denied women freedom of contract. (Adkins v. Children’s Hospital 261 U.S. 525 (1923)
In 1936 the court struck down the National Industrial Recovery Act on the ground that it constituted an unconstitutional delegation of powers to the President. (Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)) Such delegation of powers are now common in our complex economy and the President through various agencies is authorized to issue regulations that have the force of law and does so under the environmental, Food and Drug, and various labor and civil rights laws. Were we to have a President whose policies and priorities conflicted with those of the court, a return to the doctrine of this case is entirely feasible.
On the other hand the more recent cases that might be overturned, in addition to the cases based on the concept of privacy previously discussed, might be Gideon v. Wainwright 372 U.S. 335 (1963), which extended to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay or Escobedo v. Illinois 378 U.S. 478 (1964), which ruled that a defendant must be allowed access to a lawyer before being questioned by police, or Miranda v. Arizona 384 U.S. 436 (1966) where the court ruled that those subjected to in-custody interrogation be advised of their constitutional right to an attorney and their right to remain silent.
Even more important are cases such as Mapp vs. Ohio 367 U.S. 643 (1961), which ruled that evidence obtained through an illegal search and seizure cannot be used in evidence. This is a case that has often been criticized as creating situations allowing some guilty defendants to escape justice. Without it, however, the 4th amendment (extended to the states by the 14th amendment) prohibition against ”unreasonable searches and seizures” becomes a nullity, for there is no other deterrent against a violation of this fundamental protection for all Americans. As it is, and even without a slew of new justices, it has already been narrowed to allow evidence to be introduced from illegal searches in certain cases, e.g. if the search though illegal, was made in good faith (US. v. Herring, 06-10795, 11th Circ 2007).
Other endangered cases that protect Americans against abuse by government power but which “conservatives have denounced as giving too many rights to the accused are Fay vs. Noia (372 US 391 1963), which holds that anyone held in custody in violation of the constitution is entitled to a writ of Habeas Corpus, In re Gault 387 U.S. 1 (1967), which held that juveniles are entitled to most of the procedural rights of adults and Jackson vs. Deno 378 US 368 (1964), which introduced procedures to prevent involuntary confessions at trial.
The area where a new court would most likely do the most extensive damage to our existing statutory scheme is where federal laws regulating the environment, conditions of labor, the regulation of guns, violence against women, and even Civil Rights legislation. This development has already been presaged by 5 to 4 decisions of the present court. For instance, in U.S. vs. Lopez 514 U.S. 549 (1995), the court struck down a law outlawing the possession of guns near schools in most cases. In U.S. v. Morrison 529 U.S. 598 (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.
It should be kept in mind that when the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence. The relevant case was Heart of Atlanta Motel v. United States 379 U.S. 241 (1964), decided only a few months after passage of the Civil Rights Act. In that case the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways. If the court were to take a restrictive view of the commerce clause, which as I have indicated is a direction the present court has already undertaken, even laws banning discrimination in public accommodations would be endangered.
The Death of Justice Renquist
Many believe that the death of Justice Rehnquist and his replacement by someone holding the views of Justices Scalia or Thomas will not have a profound effect on the direction of the court. If we put the focus on “profound” this is undoubtedly true. However, even Rehnquist’s replacement could shift the court rightward, for a careful review of recent cases will show that even Rehnquist was less of an ideologue than Scalia or Thomas, and broke with those Justices on a number of important votes. For instance during the Supreme Court term that ended in June of 2003, Rehnquist voted with the majority in at least four cases in which Scalia and Thomas dissented. A replacement of Rehnquist by a clone of these Justices would, at least marginally, move the court further to the Right. At this point it is impossible to predict whether Roberts, or for that matter Miers, would be a clone of these sitting justices.
Conclusion
As important as the “Right to Choose’ is, it is a major mistake to put all the emphasis on this right in the context of the make-up of the Supreme Court. There are many other values, that are seriously endangered if the court were to be packed with Justices who analyze the Constitution in the way that Scalia and Thomas do, and one should never forget that President Bush has said that he wants justices in their image. Unless Democrats make major inroads in the Senate during the election of 2006 the future looks bleak indeed.
The Changing Court
The debate about the nomination of Harriet Miers, who is now the nominee to replace Justice O’Connor, which follows on the heels of Justice Roberts assuming the post of Chief justice is in the forefront of political discourse; as well it should be, because much is at stake. More than one could tell either from the media or from the interest groups on either side of the debate. Nor can one tell from the debate that there are legal issues involved and not just policy issues.
That is not to say that a judge’s political philosophy and even more important his/her approach to judicial interpretation are not relevant. They are! The difference between a judge who believes in a “living constitution” on the one hand, and one who believes in “original intent” or “strict constructionist” or “an activist judge” on the other, are enormous, but their meaning is often lost in political posturing both by the left and the right, though in my view much more so by the right.
Justice Stevens, one of the “liberal” members of the court, in an address before a Bar association explained the difference between interpreting the law and making policy. In referring to some conclusions he had reached, he explained that he believed that as a matter of policy that the outcomes were:
"unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator….”
In the controversial eminent domain case that allowed the "taking" of private homes for a commercial development in New London, Conn., he said that his decision was:
"entirely divorced from my judgment concerning the wisdom of the program.”
The constitution, in his view gave no basis for finding the conduct of the municipality to be unconstitutional.
Similarly, Justice O’Connor, while dissenting from an opinion of the court that declared the execution of anyone before the age of 18, said:
“Were my office that of a legislator, rather than a judge, then I, too, would be inclined to support legislation setting a minimum age of 18”.
Thus if we, and I don’t mean just lawyers, are to join the debate intelligently and not just in sound bites, we must start by reading the relevant portions of the constitution. For example, “A Women’s Right To Choose” may be good policy, but as a matter of Constitutional Law that is not enough. For it to have a constitutional basis we must find its foundation in the Constitution.
But to say that Judges do not necessarily vote for their preferred policy choices and do try to follow the law or the Constitution when handing down decisions is not to say that a judge’s judicial philosophy is not of paramount importance. But before I get into the proper interpretation of judicial philosophy let me begin by more fully exploring what is at stake.
What is at Stake
To listen to the debate one would think that the only thing that is at stake is the Right to an Abortion. As important as that issue is, there is far more at stake. To understand this we must begin by that analysis which lies at the heart of Constitutional interpretation. For example, in discussing Roe vs. Wade one must understand on what provision of the Constitution this decision was based on, and as it may seem, there are few articles in the media which discuss this, or even deem it to be relevant, although it is at the heart of the matter. (For those who wish to read the decision in full it can be found here.)
While the court in Roe vs. Wade refers to other sections of the Constitution it’s primary reliance is on the 9th amendment, which reads, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Whether we are deemed to be Strict Constructionists, Originalists, Activists, Liberals or Conservatives, we must still look at the relevant language of the Constitution and if it is not clear we can look at its history. There is virtually no debate among lawyers and judges as to this being the correct way of interpreting any legal document.
With this in mind we look at the language. It is vague! But it is easier to understand if we look at its historic context. When the founders drafted the constitution it did not contain a Bill of Rights. Many opposed its approval on this ground, but others said an enumeration of rights might have the opposite effect of what was intended because it would be impossible to list all the rights that the people have. For that reason the 9th amendment was added to make it clear that the previous eight were not intended to be all-inclusive. At the same time it left open a plethora of uncertainty as to what other rights are to be implied. If none are to be implied then the amendment becomes a nullity. If any are to be implied, they must be found without specific mention in the constitution.
This is where the “Right to Privacy” comes into play and it was not first propounded in Roe vs. Wade. It was first mentioned as long ago as 1891 in Union Pacific R. Co. v. Botsford, 141 U.S. 250 at page 251. Its most important reference to the concept, however, was in Griswold v. Connecticut decided in 1965, and the issue was not whether a woman has a right to an abortion, but whether a law forbidding contraception stood constitutional muster. This was where the concept of privacy as being protected was enunciated most clearly and it formed the basis of that decision.
In 1981, Roberts referred to the "so-called right to privacy…." If he believes, as this might indicate, that there is no such right, and if he is not willing to defer to a precedent that has been reaffirmed by numerous decisions of the court over a period of forty years, (Stare decisis) then not only is the right to an abortion no longer protected, but neither is the right to practice contraception. Many other cases, including a recent one (Lawrence vs. Texas 539 U.S. 558 (2003), which relied more on the equal protection clause of the 14th amendment than on the 9th amendment striking down a Texas law that criminalized homosexual conduct, would be reversed.
Roe v. Wade
While I have said that much more is at stake than the right to abortion, so much controversy has been engendered by this case that a greater understanding than is now generally available appears to be in order. Most people, for instance believe that Roe vs. Wade made all laws that restrict abortion unconstitutional. That is a serious misunderstanding of the holding of the case. The court in its finding said:
“With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting
fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.”
The court then went on to a more specific guide, as follows:
(a) For the stage prior to approximately the end of the first trimester, thr abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.
(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.
(c) For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.
The provision of (c), as could be expected, became a bone of contention in a later case where the court upheld a Texas requirement for tests to determine the viability of a fetus where in the doctor’s judgment the fetus was twenty or more weeks of gestational age. While this seems to have been a minor narrowing of the Roe holding, it was considered by many to presage a constant narrowing of the freedom given by Roe.
It is to be noted that the only time that the court allows so called abortion on demand is during the first trisemester. However, opponents argue that even (c) is in effect abortion on demand because they claim a doctor can always be found who will certify a danger to the health of the mother, even if that is only that her mental health will be endangered. More radical elements argue that even the life of the mother is irrelevant because we are simply exchanging one life for another, and they hold to the view of some religious groups, including the Catholic Church that life begins at conception. Most of these same groups also believe that contraception is a sin, which should be proscribed, though they mute this view, recognizing that its promulgation would hurt their abortion fight.
Looking at the court, as it is presently constituted, the addition of Roberts in place of Chief Justice Rehnquist is not likely to lead to an overthrow of Roe vs. Wade since Rehnquist was always opposed to the outcome in Roe. The only Justices now on the court who are committed to overturning the decision in Roe v. Wade are Justices Thomas and Scalia. Thus the replacement of Rehnquist by Roberts would still leave the present line-up intact. The replacement of Justice O’Connor, however, leaves an uncertain landscape because Justice Kennedy is considered to still be on the fence. Thus if O’Connor is replaced by an anti-choice stalwart, and it is not clear where Miers stands, we would have a 4 to 4 line-up with Justice Kennedy becoming the potential swing vote. On the more peripheral issues, however, which bear on how difficult it would be to have access to an abortion, where Justice O’Connor was frequently the swing vote, it is likely that the court would take a more restrictive view of abortion, even if it does not actually over rule Roe.
However, if Justice Stevens, who is now 85 years old, were to retire we would have a whole new court, which could, and probably would, eliminate the concept of privacy from the constitution and thereby reverse not only Roe vs. Wade, and the right to abortion, but Griswold and the right to contraception, and would reinstate laws criminalizing homo-sexual conduct. If these results seem frightening, they could very well be but the tip of the iceberg.
UNDERSTANDING “STRICT CONSTRUCTIONISM”
It is well to begin our discussion with “strict constructionism” because this was an issue that was debated at the dawn of our Constitution. It turned on the creation of the Bank of the United States, which was the brainchild of Alexander Hamilton. Its introduction in the Congress aroused a storm of controversy not only about its wisdom but more fundamentally about its constitutionality. One of its vocal opponents cried:
“This bank is unconstitutional! We have no power to grant a charter to any private corporation!” He went on to point out, “ that a power to grant charters of incorporation had been proposed in the General Convention and rejected.”
Hamilton’s supporters countered by invoking the doctrine of “implied powers.” They argued:
“If Congress may not make laws conformable to the powers plainly implied though not expressed in the frame of Government, it is rather late in the day to adopt it as a principle of conduct. A great part of our two years labor is lost to the public… for we have scarcely made a law in which we have not exercised our discretion with regard to the true intent of the Constitution.”
After Congress passed the bill by a vote of 39 to 20 Washington, who believed that the issue of Constitutionality was a Presidential responsibility, considered vetoing the bill on that ground. To help him reach a conclusion he asked for an opinion from his Attorney General, Edmund Randolph, who viewed it as unconstitutional. Still troubled he asked for opinions from Jefferson and Hamilton. Hamilton carried the day, arguing,
“That every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power…”
Washington was convinced and signed the bill into law.
Subsequently, after the Supreme Court established its power to interpret the Constitution in the seminal case of Marbury vs. Madison in 1803, assuming a power that was not specifically granted in the Constitution, but which the court argued was implied and it upheld the formation of the bank in McCullough vs. Maryland in 1819.
Since then the number of times that various branches of government have departed from the strict language of the constitution are legion, but the debate has never entirely ended. However, it is difficult to imagine how the United States would have survived if “strict constructionism” had consistently been followed. It has during the course of history been invoked by whichever side believes that its political agenda is best served by this doctrine or alternatively is served by an interpretation of the constitution which interprets the language of this document in the light of conditions as they exist today. Under a strict interpretation, the power to criminalize the sale and possession of heroin, regulation of child labor, and of wages (the minimum wage and overtime pay) as well as Social Security, Medicare and Medicaid, to mention a few, would be in serious doubt.
UNDERSTANDING “ORIGINAL INTENT”
Original Intent is an even more difficult term to define and apply because it was not debated during the formative period of our Republic. It has, however, become an argument that runs parallel to Strict Constructionism. It’s basic tenet is that in interpreting the Constitution we may not take into account changing conditions in interpreting the Constitution but must be bound by the meaning as it was understood by its framers. The difficulty with this is that the constitution was deliberately left vague so as to satisfy various factions, each of whom would have had a different interpretation of the meaning of the language. In addition, as we have seen, Hamilton, one of the framers of the constitution, and the principal author along with Madison, of the Federalist papers, which was the main instrument in convincing the colonies the adopt the constitution, had an expansionist view of its language.
Furthermore, the constitution now has been amended 27 times. Can we look to the intent of the constitution as it was written or must we look to the intent of the amendments? For instance the fourteenth amendment states,”…; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” At the time it was enacted it was intended to protect the newly emancipated slaves, but it has since then been interpreted to make all ten amendments that constitute the Bill of Rights apply to the States. Original Intent? Probably not, but it does seem to fit into the category of Strict Interpretation, which makes it into an interesting paradox since the term Strict Interpretation and Original Intent are generally used by its proponents as though they were interchangeable. More problematic are the decisions regarding corporations, which in a series of cases beginning as early as 1866 found that corporations were persons within the meaning of the 14th amendment. I do not believe that this conclusion can be justified by any language found anywhere in the constitution. Certainly, the original intent of the 14th amendment was not to protect corporations, nor is there any language anywhere in the constitution that deals with this question. Nevertheless, the court reasoned that a corporation is nothing more than a collection of individuals and therefore has all the rights and immunities of individual persons. Of course corporations are not just a collection of individuals, as are partnerships. They have qualities that individuals do not possess, such as the protection from creditors of individual shareholders; they are also taxed differently from individuals and have economic power that could never be matched by individuals. But does this reasoning fit into either the doctrine of “original intent” or of “strict interpretation”? Yet proponents of those doctrines are not likely to strike them down.
Proponents of this doctrine, who generally want to overturn Roe vs. Wade and most likely Griswold, et al are also conscious that they must justify overturning a precedent of half a century duration. They have come up with the argument that the Dredd Scott decision, (Scott vs. Sanford 1857) is a perfect example of a decision that is so bad that no one could question the desirability of a reversal (They equate it with the decision in Roe vs. Wade which most can agree is a stretch) and they imply that it was, in fact reversed in due course. Its result was without question an affront to all anti-slavery forces, and even to those who sought compromise, but it was not reversed. It was overturned after the Civil War by the 14th amendment.
More important, however, is that under the doctrine of original intent, it was most likely a correct decision. When the Constitution was written both slavery and involuntary servitude were accepted not only in the southern states, but in many northern states as well. While the constitution never uses the word slavery or servitude, its reference to “free persons and 3/5th of all other persons” is clearly a reference to the existence of slaves whose number are to be used for apportionment purposes. Furthermore, even those who abhorred slavery, did not at the time the Constitution was drafted and adopted, envisioned someone of African descent as a citizen, or of having rights such as those held by whites. While by the time of the Dredd Scott decision opinion had changed, particularly in the North, and if the court had taken cognizance of this change in popular opinion, the decision might well have been drastically different. Under the doctrine of “Original Intent,” however, the decision was probably correct. Proponents of “Original Intent,” of course, cannot admit this or their approach would be rejected by the vast majority of Americans. Both “Original Intent” and “Strict Interpretation” if applied consistently would destroy our whole edifice of juridical history and put the U.S. into the 19th and to some extent into the 18th century.
Without the concept of a Living Constitution, and the concept of “evolving standards of decency” which the Supreme Court has relied on, we might still allow corporal punishment, such as branding and whipping.
Understanding the Meaning of Activist Judges
As far as I know no one has ever tried to define this word. It has generally been used as a word of deprecation to define those judges who believe in a living constitution or who interpret the Constitution in the light of existing conditions or create new rights for the American people, such as the right to contraception. Though, as has been shown in relationship to declaring corporations to be persons, albeit artificial ones, judges who normally hold to a so-called strict interpretation are quite capable of deviating from this standard when there values require it.
It seems much more logical, however, to define activist as a judge who does not hesitate to strike down Acts of Congress. Using this standard, we find that it applies more frequently to judges who are considered to be “conservative” rather than to those deemed “liberal.” Using this standard we find the opposite of what most people might assume. It turns out that by this standard Justice Thomas is the most activist judge and Justice Breyer, a judge generally grouped among the liberal four is the least activist. In fact it appears that the Justices presently on the court have during the years that they have been together on the court i.e. 1994, have struck down Acts of Congress as being unconstitutional in the percentages shown below:
Thomas 65.63 %
Kennedy 64.06 %
Scalia 56.25 %
Rehnquist 46.88 %
O’Connor 46.77 %
Souter 42.19 %
Stevens 39.34 %
Ginsburg 39.06 %
Breyer 28.13 %
It is evident from this that there is a correlation between being liberal and deferring to our elected representatives, which is the opposite to what we have been led to believe by a barrage of disaffected right wing zealots, who denounce the court whenever it does not rule in accordance with its dictates.
Understanding the Meaning of a Liberal Judge
For most of the decade between the advent of the New Deal of Franklin D. Roosevelt until the rise of the new Right with the election of Ronald Reagan, liberal was a term that was associated with the programs known as the New Deal, which was generally popular and the term was probably embraced by most, who supported the tenants of that program. The term has now fallen out of favor to a large extent because it has been denigrated by those who generally would like to see these social programs dismantled. It most likely also lost its glitter because of its association with many of the excesses of the ’60s. Republican and right wing activists invariably use it as a pejorative term.
Franklin’s Merriam Webster’s electronic dictionary defines liberal as “generous,” “not narrow in opinion or judgment” “tolerant.”
The Encarta Word English dictionary uses these definitions:
1. tolerant of different views and standards of behavior in others
2. favoring gradual reform, especially political reforms that extend democracy, distribute wealth more evenly, and protect the personal freedom of the individual
3. generous with money, time, or some other asset
5. not limited to the literal meaning in translation or interpretation
6. concerned with general cultural matters and broadening of the mind rather than professional or technical study
7. relating to a political ideology of liberalism
8. somebody who favors tolerance or reform
Given these accepted meanings it is hard to understand why the term has fallen out of favor. In political terms, I believe that the definitions of Encarta in 1 and 2 probably best describe its philosophy.
In terms of the Justices of the court, Justices Souter, Stevens, Ginsburg and Breyer are generally described as liberal. They appear to fit not only definition 1 and 2, but as a matter of constitutional interpretation fit the definition of (5), for which they are often criticized, but they would maintain that given the nature of the Constitution, this has not only been a desirable means of interpretation since the early days of the Republic, but has been an absolutely necessary one. They are often accused of making law rather than interpreting it, but as we have seen, other methods of interpretation have not historically been possible. Conservatives have as often placed their own worldview on the Constitution as liberals, e.g. finding corporations to be persons, or enunciating doctrines, as exemplified in the Dredd Scott decision.
Understanding the Meaning of a Comservative Judge
For most of the period since the New Deal and even long before, a conservative was generally considered as one who was pro-business. Conservativism in this sense was deeply ingrained in the Republican Party. For Instance, Calvin Coolidge, The Republican President in the 20s famously said, “The business of America is business." (January 17, 1925) And Dwight Eisenhower’ Secretary of Defense, Charlie Wilson, said, “What is good for General Motors is good for America.” This however is not the dictionary definition of a conservative.
Franklin’s Merriam Webster’s electronic dictionary defines the term as, ”disposed to maintain existing views, conditions, or institutions” and “moderate, cautious.”
The Encarta Word English dictionary uses these definitions:
“in favor of preserving the status quo and traditional values and
customs, and against abrupt change”
“somebody who is reluctant to consider new ideas or accept change”
This is quite different from being pro-business but it nevertheless defined the Republican Party to a large extent during the period from the advent of the New Deal through the inauguration of Ronald Reagan. Republicans and conservatives on the Supreme Court strongly objected to the social and economic innovations of the New Deal (Roosevelt), The Fair Deal (Truman) and the Great Society (Johnson) and on the Court to the innovations the Warren Court, but they urged caution and tried to stop these innovations from coming into force. But they were true conservatives for the most part. Once a new innovation was enacted they accepted it. They weren’t anxious to undo that which had come to be accepted by the American people and the legal profession. Thus, the precedence of Griswold decided in 1965 and its finding of a right of privacy in the Constitution has never been under serious attack for the 40 years since it was first promulgated, though in recent years there has been an increasing minority in favor of “modifying” which probably means eviscerating, rather than outright overruling Roe vs. Wade.
But the new breed of Republican hardly fits the definition of a conservative whether on the court or off. Off the court whether one considers the invasion of Iraq wise or not, it most certainly cannot be described as “moderate, (or) cautious”. Nor can the drastic innovation of huge deficits and huge tax cuts be considered “moderate, (or) cautious” and given the long history of the Republican Party in favor of balanced budgets can this be considered a policy, “in favor of preserving the status quo and traditional values and customs, and against abrupt change”. Nor can the innovations proposed to privatize at least a portion of Social Security be considered to be, “in favor of preserving the status quo and traditional values and customs, and against abrupt change.”
On the court the three “conservative” Justices, have made it clear in their dissents that they are prepared to overturn many precedents with particular emphasis on the right of privacy but also in many of the areas of criminal law. Thus the term radicals would more aptly fit their philosophy, but in an America which by and large is conservative, in the true sense, that is not a label that anyone would willingly accept.
Many believe that a conservative is one who is reluctant to overturn precedent or to invalidate acts of an elected legislature, whether state or federal, but while that certainly is what we would expect from a “true” conservative, the present factions who call themselves, “conservatives” certainly don’t fit that description.
Other Areas That Could and Would be Changed
Since the present minority on the court, (which could become a majority with the investiture of Justice Roberts and the replacement of O’Connor with Miers and would certainly become a majority with the appointment of one more Justices) appears to be hostile to the decisions of the court during the period beginning with the first appointment to the court by Franklin D. Roosevelt, we can best begin to get a picture of the landscape we could be returning to, by looking at the cases that were decided during the preceding period, as well as by looking at the cases that were decided thereafter.
In 1905 the Supreme Court Declared unconstitutional a New York Act limiting the working hours of bakers, holding that such a law was an abridgment of the employers due process rights under the 14th Amendment. The court reasoned that even though states have the power to regulate the areas of health, safety, morals, and public welfare, the New York law in question was not within the limits of these “police powers” of the State. (Lochner v. New York, 198 U.S. 45 1905) [This decision was the beginning of a series of decisions that relied on the concept of “substantive due process in which the Court struck down a number of state laws that interfered with an individual’s economic and property rights. Even though this decision was overruled in 1917 in Bunting vs. Oregon 243 U.S. 426 (1917), it is not inconceivable that a court consisting of clones of Scalia and Thomas would return to the doctrine set forth in the Lochner case.
Even though the Bunting case might have suggested that the court had changed direction it soon became apparent that this was not the case when in 1918 The Supreme Court struck down a federal statute forbidding child labor (Hammer v. Dagenhart 247 U.S. 251 (1918)) and in 1923 the Court declared unconstitutional a minimum wage law for women on the grounds that it denied women freedom of contract. (Adkins v. Children’s Hospital 261 U.S. 525 (1923)
In 1936 the court struck down the National Industrial Recovery Act on the ground that it constituted an unconstitutional delegation of powers to the President. (Schechter Poultry Corp. v. United States 295 U.S. 495 (1935)) Such delegation of powers are now common in our complex economy and the President through various agencies is authorized to issue regulations that have the force of law and does so under the environmental, Food and Drug, and various labor and civil rights laws. Were we to have a President whose policies and priorities conflicted with those of the court, a return to the doctrine of this case is entirely feasible.
On the other hand the more recent cases that might be overturned, in addition to the cases based on the concept of privacy previously discussed, might be Gideon v. Wainwright 372 U.S. 335 (1963), which extended to the defendant the right of counsel in all state and federal criminal trials regardless of their ability to pay or Escobedo v. Illinois 378 U.S. 478 (1964), which ruled that a defendant must be allowed access to a lawyer before being questioned by police, or Miranda v. Arizona 384 U.S. 436 (1966) where the court ruled that those subjected to in-custody interrogation be advised of their constitutional right to an attorney and their right to remain silent.
Even more important are cases such as Mapp vs. Ohio 367 U.S. 643 (1961), which ruled that evidence obtained through an illegal search and seizure cannot be used in evidence. This is a case that has often been criticized as creating situations allowing some guilty defendants to escape justice. Without it, however, the 4th amendment (extended to the states by the 14th amendment) prohibition against ”unreasonable searches and seizures” becomes a nullity, for there is no other deterrent against a violation of this fundamental protection for all Americans. As it is, and even without a slew of new justices, it has already been narrowed to allow evidence to be introduced from illegal searches in certain cases, e.g. if the search though illegal, was made in good faith (US. v. Herring, 06-10795, 11th Circ 2007).
Other endangered cases that protect Americans against abuse by government power but which “conservatives have denounced as giving too many rights to the accused are Fay vs. Noia (372 US 391 1963), which holds that anyone held in custody in violation of the constitution is entitled to a writ of Habeas Corpus, In re Gault 387 U.S. 1 (1967), which held that juveniles are entitled to most of the procedural rights of adults and Jackson vs. Deno 378 US 368 (1964), which introduced procedures to prevent involuntary confessions at trial.
The area where a new court would most likely do the most extensive damage to our existing statutory scheme is where federal laws regulating the environment, conditions of labor, the regulation of guns, violence against women, and even Civil Rights legislation. This development has already been presaged by 5 to 4 decisions of the present court. For instance, in U.S. vs. Lopez 514 U.S. 549 (1995), the court struck down a law outlawing the possession of guns near schools in most cases. In U.S. v. Morrison 529 U.S. 598 (2000), the same 5-4 majority overturned a provision of the Violence Against Women Act empowering rape victims to file damage suits in federal court.
It should be kept in mind that when the Supreme Court upheld the constitutionality of the 1964 Civil Rights Act's ban on discrimination in public accommodations, it accepted the government's argument that the law was a proper exercise of Congress' power over interstate commence. The relevant case was Heart of Atlanta Motel v. United States 379 U.S. 241 (1964), decided only a few months after passage of the Civil Rights Act. In that case the court upheld the application of the Civil Rights Act to an Atlanta motel that had refused to allow African-Americans to stay there. In doing so, the court noted that 75 percent of the Heart of Atlanta Motel's guests came from out of state, and that it was located near two interstate highways. If the court were to take a restrictive view of the commerce clause, which as I have indicated is a direction the present court has already undertaken, even laws banning discrimination in public accommodations would be endangered.
The Death of Justice Renquist
Many believe that the death of Justice Rehnquist and his replacement by someone holding the views of Justices Scalia or Thomas will not have a profound effect on the direction of the court. If we put the focus on “profound” this is undoubtedly true. However, even Rehnquist’s replacement could shift the court rightward, for a careful review of recent cases will show that even Rehnquist was less of an ideologue than Scalia or Thomas, and broke with those Justices on a number of important votes. For instance during the Supreme Court term that ended in June of 2003, Rehnquist voted with the majority in at least four cases in which Scalia and Thomas dissented. A replacement of Rehnquist by a clone of these Justices would, at least marginally, move the court further to the Right. At this point it is impossible to predict whether Roberts, or for that matter Miers, would be a clone of these sitting justices.
Conclusion
As important as the “Right to Choose’ is, it is a major mistake to put all the emphasis on this right in the context of the make-up of the Supreme Court. There are many other values, that are seriously endangered if the court were to be packed with Justices who analyze the Constitution in the way that Scalia and Thomas do, and one should never forget that President Bush has said that he wants justices in their image. Unless Democrats make major inroads in the Senate during the election of 2006 the future looks bleak indeed.
Saturday, July 16, 2005
A Constitutional Amendment To Ban Desecration Of The American Flag
H.J.Res. 10, a constitutional amendment to ban desecration of the American flag recently H.J.Res. 10, a constitutional amendment to ban desecration of the American flag. passed the House but got almost no coverage by the media. This may be because since the 1960s when flag burning was a frequent expression of opposition to the Vietnam war such resolutions passed the House many times but failed to get the needed 2/3 majority needed for a Constitutional Amendment. The difference now is that with a Senate which is more right wing than at any time since the ‘60s this could pass the Senate as well.
Much to my consternation, I discovered that my Democratic, liberal Congressman Steve Rothman, not only voted for the amendment in the House along with 77 other Democrats, including my former Congressman in Montclair, Bill Pascrell, but he was a cosponsor of the amendment. Accordingly I sent him an e-mail expressing my dismay.
I quote his response below:
“Thank you for contacting me to express your opposition to
H.J.Res. 10, a constitutional amendment to ban desecration of the
American flag. I appreciate hearing from you and I welcome the
opportunity to respond.
"I understand and share your concerns about threats to First
Amendment liberties and freedoms. However, while I am a strong
defender of our First Amendment rights, I believe that the
Constitution (and our Founders) meant for "reasonable" lines to be
drawn, limiting some forms of "speech" such as shouting "fire" in
a crowded theater, public obscenity, threatening a person or a
group with bodily harm, and child pornography. I believe -- and
certainly other reasonable people of good will could disagree --
that the unique national symbol of America's hard won freedoms
and liberties should be protected. In that regard, it is obvious but
important to note, that there are many other ways to express
disapproval for our government's actions, to oppose political
leaders, as well as to "protest" about one's general frustration with
our country's policies. I believe that a reasonable civil penalty
would be appropriate for those who would desecrate our national
flag.
"As you may know, on June 22, 2005, I voted for and
Congress passed H.J.Res. 10, a proposed Constitutional
amendment to prohibit the physical desecration of the U.S. flag, by
a vote of 286-130. I know how seriously you and many other of
my friends and respected colleagues may disagree with me on this
issue. However, I hope you are also aware that we hopefully agree
on the vast majority of other important issues facing our country
on a daily basis. And while we may disagree on this issue, please
know that I will continue to value your input on all the critical
issues facing Congress and I will be sure to keep our shared
support for the importance of free speech very much in mind.
"Thank you again for contacting me. As your
Representative in the United States Congress, it is a privilege and
an honor to serve you and to act as your voice in Washington.
Please feel free to contact me again with any other issue or matter
that concerns you. You may also want to visit my website at
www.house.gov/rothman where you can sign up for my e-
newsletter and keep current with my latest Congressional activities
and policy statements.”
I did not let the matter rest there but wrote to him again as follows:
“Dear Mr. Rothman,
"Thank you for your kind response to my letter on H.J. Res. 10, the constitutional amendment to ban desecration of the American flag.
"You are quite right that we agree on the vast majority of other important issues facing our country on a daily basis but I can not accept this issue of being of anything but fundamental importance.
"I wonder if you or your Democratic colleagues, who supported this amendment, have considered some of its ramifications.
"I recently received a small replica of an American flag in the mail. Will I be violating the law if I throw it in the wastebasket or would I have to keep it in order not to break the law? "If I wear a sweatshirt with the flag on it distorted will I be a criminal? If I have a flag that is old and dirty and throw it into the incinerator will I be guilty of flag burning? If I walk over a carpet bearing a likeness of the flag what would be the consequences.
You talk of this new crime being subject only to civil penalties. Is there a provision in the amendment that limits the penalties to civil ones and if so does it prevent the penalties from being excessive?
"Is our National Anthem any less our National symbol? If people sing it, but distort the words so as to change the last line of the Anthem to, “Over the land of slaves and the home of cowards?” would you support an amendment to ban distortion of our anthem?
"A few years ago the Brooklyn museum had a display that deeply offended Catholics. Then Mayor Giuliani felt it should not be allowed to be shown. Would you support such a ban?
"If someone published material denying the Holocaust and saying while it isn’t true it, it would nevertheless be a good idea to kill all Jews, do you think our laws should make this criminal, (as it probably is in present day Germany) or even attach civil penalties.
"I do not see how you can support the flag amendment, which you not only supported but sponsored, without asking yourself, and answering these questions.
"I would be grateful if you would let me have a detailed response even though no form letter could serve this purpose.”
At about the same time there appeared in my local paper, the Fort Lee Suburbanite the following letter to the Editor:
I couldn’t resist and wrote my own Letter to the Editor which was published in Friday’s edition of the paper as follows:
Much to my consternation, I discovered that my Democratic, liberal Congressman Steve Rothman, not only voted for the amendment in the House along with 77 other Democrats, including my former Congressman in Montclair, Bill Pascrell, but he was a cosponsor of the amendment. Accordingly I sent him an e-mail expressing my dismay.
I quote his response below:
“Thank you for contacting me to express your opposition to
H.J.Res. 10, a constitutional amendment to ban desecration of the
American flag. I appreciate hearing from you and I welcome the
opportunity to respond.
"I understand and share your concerns about threats to First
Amendment liberties and freedoms. However, while I am a strong
defender of our First Amendment rights, I believe that the
Constitution (and our Founders) meant for "reasonable" lines to be
drawn, limiting some forms of "speech" such as shouting "fire" in
a crowded theater, public obscenity, threatening a person or a
group with bodily harm, and child pornography. I believe -- and
certainly other reasonable people of good will could disagree --
that the unique national symbol of America's hard won freedoms
and liberties should be protected. In that regard, it is obvious but
important to note, that there are many other ways to express
disapproval for our government's actions, to oppose political
leaders, as well as to "protest" about one's general frustration with
our country's policies. I believe that a reasonable civil penalty
would be appropriate for those who would desecrate our national
flag.
"As you may know, on June 22, 2005, I voted for and
Congress passed H.J.Res. 10, a proposed Constitutional
amendment to prohibit the physical desecration of the U.S. flag, by
a vote of 286-130. I know how seriously you and many other of
my friends and respected colleagues may disagree with me on this
issue. However, I hope you are also aware that we hopefully agree
on the vast majority of other important issues facing our country
on a daily basis. And while we may disagree on this issue, please
know that I will continue to value your input on all the critical
issues facing Congress and I will be sure to keep our shared
support for the importance of free speech very much in mind.
"Thank you again for contacting me. As your
Representative in the United States Congress, it is a privilege and
an honor to serve you and to act as your voice in Washington.
Please feel free to contact me again with any other issue or matter
that concerns you. You may also want to visit my website at
www.house.gov/rothman where you can sign up for my e-
newsletter and keep current with my latest Congressional activities
and policy statements.”
I did not let the matter rest there but wrote to him again as follows:
“Dear Mr. Rothman,
"Thank you for your kind response to my letter on H.J. Res. 10, the constitutional amendment to ban desecration of the American flag.
"You are quite right that we agree on the vast majority of other important issues facing our country on a daily basis but I can not accept this issue of being of anything but fundamental importance.
"I wonder if you or your Democratic colleagues, who supported this amendment, have considered some of its ramifications.
"I recently received a small replica of an American flag in the mail. Will I be violating the law if I throw it in the wastebasket or would I have to keep it in order not to break the law? "If I wear a sweatshirt with the flag on it distorted will I be a criminal? If I have a flag that is old and dirty and throw it into the incinerator will I be guilty of flag burning? If I walk over a carpet bearing a likeness of the flag what would be the consequences.
You talk of this new crime being subject only to civil penalties. Is there a provision in the amendment that limits the penalties to civil ones and if so does it prevent the penalties from being excessive?
"Is our National Anthem any less our National symbol? If people sing it, but distort the words so as to change the last line of the Anthem to, “Over the land of slaves and the home of cowards?” would you support an amendment to ban distortion of our anthem?
"A few years ago the Brooklyn museum had a display that deeply offended Catholics. Then Mayor Giuliani felt it should not be allowed to be shown. Would you support such a ban?
"If someone published material denying the Holocaust and saying while it isn’t true it, it would nevertheless be a good idea to kill all Jews, do you think our laws should make this criminal, (as it probably is in present day Germany) or even attach civil penalties.
"I do not see how you can support the flag amendment, which you not only supported but sponsored, without asking yourself, and answering these questions.
"I would be grateful if you would let me have a detailed response even though no form letter could serve this purpose.”
At about the same time there appeared in my local paper, the Fort Lee Suburbanite the following letter to the Editor:
Senators must support flag protection
"TO THE EDITOR:
"Once again, a large majority of the U.S. Senate is committed to send the Flag Amendment for an up-or-down vote by representatives of the people. Once again, this majority may be just shy of the required two-thirds. And, once again, a few "swing" senators are coming up with old excuses for stifling a uniquely democratic process of constitutional lawmaking.
"These senators say they agree with most Americans: Congress should be allowed, as in the past, to protect the flag from physical desecration. They say there's a need to protect the American flag from defecation, urination and burning. They do not claim it would somehow erode free speech to do so. But, here is where the excuses come in.
"First, they insist there's another way. A flag protection statute, they say, would be better than a constitutional amendment. This misses the point. The point of the constitutional amendment is precisely to permit the enactment of a statute. A senator who supports a statute must support the amendment. There is no way around it.
"The reason, of course, is that a bare (5-4) majority of the Supreme Court- for the first time in our history, 15 years ago - held that specific statutory protection of the flag is impermissible. The five justices said that physical desecration is "speech" and that singling out the American flag for protection amounts, in itself, to favoring one point of view over other competing points of view. Under this reasoning any flag protection statute will be invalid.
"The "swing" senators claim disagree with the Supreme Court. But they are reluctant back up their disagreement with their vote. Instead, they want to imagine the court never did and said what it did and said. When pressed on this point, they move on to a second excuse for blocking progress of the amendment. The court, they imagine, will soon change its mind. This is a fantasy.
"Four Justices have joined Supreme Court since it last faced the flag protection issue. Of them, three (Souter, Ginsburg and Breyer) would surely stick with the previous decision. Along with two others (Scalia and Kennedy) who were in the majority 15 years ago, that makes a majority of five. If the fourth new Justice (Thomas) were to agree with Scalia, as he often does, that would make six.
"What is more, the three Justices thought most likely to retire in the next several years (Rehnquist, Stevens and O'Connor), were all in dissent on the issue. Their replacement with pro-flag protection successors would make no difference at all.
"Again, there is no alternative. The "swing" senators either must accede to the court's continued ban on any statute specifically protecting the flag, a position with which they say they profoundly disagree. Or, acting on their professed support for flag protection, they must allow the 50 states to vote on the proposed constitutional amendment, thus permitting correction of what they say is the court's mistake.
"Of course, an amendment ought not be undertaken lightly. It ought to have sustained, very substantial popular backing before being sent to the states. Not many could pass that test. But the Flag Amendment does. For a decade and a half, the overwhelming bulk of the American people have supported it.
"The "swing" senators say they, too, support flag protection. Now, the time has come to see if they really do.
Richard D. Parker
Professor of Law
Harvard Law School
I couldn’t resist and wrote my own Letter to the Editor which was published in Friday’s edition of the paper as follows:
“The letter to the Editor by Professor Parker of Harvard Law School which appeared in your July 8, 2005 edition is notable for the fact that it goes on paragraph after paragraph extolling the desirability of a Constitutional amendment to limit the First Amendment so as to allow Congress to pass legislation banning flag desecration, without ever discussing the pros and cons of such an extra-ordinary act other than that it is popular.
"That it is popular is true, but it is equally true that it is popular because its consequences have never really been discussed and discussion has been suppressed by labeling anyone who does not support it as being something less than patriotic. But support of free speech by words or symbols is the height of patriotism. It is what our flag stands for.
"I recently wrote a letter to Congressman Rothman, who represents this district and I believe I can best address this issue by simply quoting my letter to the Congressman…. “
I then quoted the letter to the Congressman omitting, for brevities sake, the part about the Holocaust.
It will be interesting to see whether the Congressman responds. In the meantime I would be very happy to have comments on this controversial subject.
Thursday, May 19, 2005
The Filibuster and The Nuclear Option
There has been much in the media about the filibuster regarding judicial nominations and the desirability or lack thereof with regard to judicial nominations. I believe this misses the crucial point. On this point both sides are insincere.
Historically, Republicans have favored the filibuster and Democrats have opposed it. Therefor there are both being at least inconsistent in their present positions, if not actually hypocritical.
A more important point, however is at stake which is not being widely discussed. Senate Rules say that debate can only be halted by 60 votes. Republicans want to change this as to confirmation of judges only. That is their right! But it is their right to do it only within the procedures of the Senate which provides:
RULE 43
Suspending and Amending Rules
Any Rule of the Senate or severable portion of a rule of the Senate may be suspended by unanimous consent of the Senate. Without unanimous consent one day's previous notice shall be given of a motion to suspend any of the rules or severable portion thereof. A motion to suspend shall require a vote of two-thirds (2/3) of the membership of the Senate.
Any permanent amendment, rescission, or repeal of any of the Senate rules shall require a two-thirds (2/3) vote of the total membership of the Senate. However, from the convening of the 2006 legislative session through the second Thursday of the 2006 legislative session, any permanent amendment, rescission, or repeal of any of the Senate rules may be made by adoption of a Senate Resolution that has been referred to and has received a favorable report from the Rules Committee.
The Clerk of the Senate shall have these rules recorded in a permanent book which shall be kept at all times in the Senate Chamber. All permanent changes in the rules after they have been adopted shall be recorded in a Permanent Rule Book and certified by the Clerk of the Senate. These rules shall remain in full force and effect until the conclusion of the terms for Senators or until the Rules are amended, suspended, or repealed by a vote of two-thirds (2/3) of the membership of the Senate prior thereto.
Last Updated: 1/12/05 4:27 PM
Then how can the Republican majority change the rules by majority vote? The answer is by a sham interpretation of the rules by the Vice-President followed by a sham upholding of a ruling by a majority of the Senate.
RULE 7 A.
Question of Order
Appeal from President's Decision
If a Senator in speaking, or otherwise, violates the Rules of the Senate, the presiding officer shall, or any member may, by raising a point of order, call him to order; and when a member is called to order by the President or under a point of order, he or she shall sit down and may not proceed without leave of the Senate, unless the President takes the point of order under advisement. The President may call for the Sense of the Senate on any question of order. Every question of order must be decided by the President, without debate, and Senators shall have the right to appeal the decisions of the President to the full Senate. When the decision of the President is appealed, the President Pro Tempore or his or her designee shall preside and the President shall retire from the chamber during the pendency of the appeal and the Senate's debate and action on the motion to appeal. The question before the Senate shall be "Shall the ruling of the President be overridden?" and after not more than thirty (30) minutes, fifteen (15) minutes for and fifteen (15) minutes against, of debate it shall be decided by a majority vote of the membership.
This of-course assumes that the ruling of the chair shall be made in good faith. But in this case the ruling would fly in the face of the clear rules of the Senate and therefor would be a violation of law and ethics. It is hard to believe that there are not five Republicans who believe in the Rule of Law and are willing to stand up to uphold that rule of law. To do otherwise is to open a Pandora's box. Also the VP has said that he would vote to break a tie. Since he must retire from the chamber it is hard to see how he could do that within the rules but it appears that no rules and no laws are any longer binding upon this runaway Republican majority.
Here is what two former Republican Senators writing in the Wall Street Journal had to say on the subject. What follows is an excerpt:
At this point, no one knows how the "nuclear option" drama will play out, but we would respectfully offer to senators, both Republican and Democratic, a bit of back-country wisdom: When you find a bear in your cabin, it's not smart to try to burn him out.
Messrs. McClure and Wallop, Republicans, are former senators from Idaho and Wyoming, respectively.
Historically, Republicans have favored the filibuster and Democrats have opposed it. Therefor there are both being at least inconsistent in their present positions, if not actually hypocritical.
A more important point, however is at stake which is not being widely discussed. Senate Rules say that debate can only be halted by 60 votes. Republicans want to change this as to confirmation of judges only. That is their right! But it is their right to do it only within the procedures of the Senate which provides:
RULE 43
Suspending and Amending Rules
Any Rule of the Senate or severable portion of a rule of the Senate may be suspended by unanimous consent of the Senate. Without unanimous consent one day's previous notice shall be given of a motion to suspend any of the rules or severable portion thereof. A motion to suspend shall require a vote of two-thirds (2/3) of the membership of the Senate.
Any permanent amendment, rescission, or repeal of any of the Senate rules shall require a two-thirds (2/3) vote of the total membership of the Senate. However, from the convening of the 2006 legislative session through the second Thursday of the 2006 legislative session, any permanent amendment, rescission, or repeal of any of the Senate rules may be made by adoption of a Senate Resolution that has been referred to and has received a favorable report from the Rules Committee.
The Clerk of the Senate shall have these rules recorded in a permanent book which shall be kept at all times in the Senate Chamber. All permanent changes in the rules after they have been adopted shall be recorded in a Permanent Rule Book and certified by the Clerk of the Senate. These rules shall remain in full force and effect until the conclusion of the terms for Senators or until the Rules are amended, suspended, or repealed by a vote of two-thirds (2/3) of the membership of the Senate prior thereto.
Last Updated: 1/12/05 4:27 PM
Then how can the Republican majority change the rules by majority vote? The answer is by a sham interpretation of the rules by the Vice-President followed by a sham upholding of a ruling by a majority of the Senate.
RULE 7 A.
Question of Order
Appeal from President's Decision
If a Senator in speaking, or otherwise, violates the Rules of the Senate, the presiding officer shall, or any member may, by raising a point of order, call him to order; and when a member is called to order by the President or under a point of order, he or she shall sit down and may not proceed without leave of the Senate, unless the President takes the point of order under advisement. The President may call for the Sense of the Senate on any question of order. Every question of order must be decided by the President, without debate, and Senators shall have the right to appeal the decisions of the President to the full Senate. When the decision of the President is appealed, the President Pro Tempore or his or her designee shall preside and the President shall retire from the chamber during the pendency of the appeal and the Senate's debate and action on the motion to appeal. The question before the Senate shall be "Shall the ruling of the President be overridden?" and after not more than thirty (30) minutes, fifteen (15) minutes for and fifteen (15) minutes against, of debate it shall be decided by a majority vote of the membership.
This of-course assumes that the ruling of the chair shall be made in good faith. But in this case the ruling would fly in the face of the clear rules of the Senate and therefor would be a violation of law and ethics. It is hard to believe that there are not five Republicans who believe in the Rule of Law and are willing to stand up to uphold that rule of law. To do otherwise is to open a Pandora's box. Also the VP has said that he would vote to break a tie. Since he must retire from the chamber it is hard to see how he could do that within the rules but it appears that no rules and no laws are any longer binding upon this runaway Republican majority.
Here is what two former Republican Senators writing in the Wall Street Journal had to say on the subject. What follows is an excerpt:
THE WALL STREET JOURNAL
Don't Go Nuclear
By Jim McClure and Malcolm Wallop
15 March 2005
The United States Senate is heading toward a crisis of sorts over the Democratic minority's use of extended debate to prevent votes on many of President Bush's most important judicial nominations. Together -- and as Republicans -- we served a combined 36 years in the Senate. We are no strangers to the filibuster and, in the past, did not hesitate to employ or to support that instrument on extraordinary occasions. .... it does not call for what is being referred to as a "nuclear option" from the Senate majority leader.
Over the past year, that "option" has been variously, and vaguely, defined. In his opening remarks to the Senate on Jan. 4, however, Sen. Bill Frist made things suddenly clear. Read carefully: "I reserve the right to propose amendments to Senate Rule XXII [concerning extended debate] and do not acquiesce to carrying over all the rules from the last Congress." The first clause is innocuous; every senator has the right to propose rules changes. But the second clause is dynamite, capable of blowing out the foundations of the Senate itself. It means the majority leader will eventually propose, against history and common sense, that the Senate is not a "continuing body." Or, to be precise, a continuing body with continuing rules, for there is the heart of the matter.
Some of the public may need to be reminded that, when the 109th Congress convened in January, only about one-third of the Senate was sworn in, namely, those members elected or re-elected last November. The other two-thirds of the membership did not stop being senators after last year's adjournment, and they did not mysteriously lose the body of rules and precedents under which the Senate operates from year to year and, ultimately, from generation to generation.
Sen. Frist's carefully crafted remarks suggest an intention to ignore all that by implying that his acquiescence is needed to "carry over all the rules from the last Congress." Without those rules, how does the Senate decide anything? How does it change the rules? How does it cut off a judicial filibuster? By simple majority vote...
All this -- in effect, turning the Senate into a high-end version of the House of Representatives -- is too high a price to pay in order to stop Senate Democrats' abuse of the filibuster on judicial nominations. It is disheartening to think that those entrusted with the Senate's history and future would consider damaging it in this manner. The alternate "nuclear" strategies under discussion are also problematic. A Constitutional point of order, for example, would, according to Senate tradition, be referred to the full Senate, where it is debatable (i.e., filibusterable). The only other option is for the chairman to rule, without citing the Constitution, that judicial nominations cannot be filibustered. That course would have no basis in either law or Senate rules. (emphasis added)
At this point, no one knows how the "nuclear option" drama will play out, but we would respectfully offer to senators, both Republican and Democratic, a bit of back-country wisdom: When you find a bear in your cabin, it's not smart to try to burn him out.
Messrs. McClure and Wallop, Republicans, are former senators from Idaho and Wyoming, respectively.
Tuesday, April 05, 2005
Class Actions and Bankruptcy Reform
The last commentary, which I circulated, was entitled, Reagan, Unions and Welfare, and I ended it with the comment, “Next time I will discuss these issues specifically, and set forth my views as to how Democrats ought to be approaching them.” So here goes!
First we must realize that the Republican agenda is far more insidious than is generally realized. The program for Social Security is not simply to have private accounts. It is to abolish Social Security. (I will address this in greater detail at a future date.)
I believe the Bush program is not only to do away with a women’s right to choose but to do away with any and all birth control or any family planning. The Evangelicals and the Catholic Church have formed an alliance on this and it is powerful.
Furthermore, I believe that Bush and his allies in the Congress want nothing less than to do away with all the reforms that have been enacted since the Presidency of Theodore Roosevelt at the dawn of the 20th century. By that I mean doing away with all consumer protections, all labor protection and all environmental protection. But they are smart! They know that if they admitted to this being their program they would be out of office and out of power in a wink and without a prayer. So they keep identifying problems and then offer, “reforms“ which by their nature, do not solve the problem, but rather undermine the program. The longer they are in power the more the very foundations of these reforms will be undermined and a resurgence of progressive forces, if and when they come, will take decades to undo the damage. So comments about a swinging pendulum miss the seriousness of the situation. Nor do they focus on the suffering being inflicted on tens of thousands, or even millions of people in the meantime.
The only thing that stands between them and their objectives is the Democratic Party. It most certainly isn’t going to be a third party.
But the Democratic Party has become a Party without a program. All they do is oppose. They do not identify problems and they most certainly do not offer solutions. While we are all focused on the threat to Social Security, the President and his followers in the Congress are busy enacting less controversial legislation, which chips away piece by piece at the framework of our protections from an ever more greedy and rapacious business community. We must understand that the battle is not fought during election campaigns, but in between, when subtle and not so subtle public relations campaigns condition the public to favor their programs. Once the public is sufficiently conditioned Democrats can no longer oppose such programs if they are to win elections, and even if they win, they cannot fly in the face of public opinion.
While we are trying to stop the emasculation and ultimately the abolition of Social Security they have already enacted class action “reform” forcing such actions into the Federal Courts. This is indeed clever for on the face of it is difficult to object to important litigation residing in the Federal courts, thus preventing forum shopping (though Republicans do not seem concerned at forum shopping to avoid paying income taxes or forum shopping to get the best forum where they can get the lowest costs and charge the highest interests-see below) and placing the actions in a court staffed with judges, who by and large are more independent and more competent than most state court judges. What they do not tell us is that the Federal Courts have held that they will not certify class actions where a multiplicity of state laws are in conflict with each other. Thus, this apparently, harmless, “reform” deals the death knell to class actions to a very large degree.
Why are class actions important? Because they are the only means by which a large group of people who individually do not have the resources to take on the deep pockets of large corporations can obtain redress, as is so well shown in, e.g. Jonathan Harr’s book and the Disney movie, 'A Civil Action’ and even more strikingly in the movie, “Erin Brockovitch” both of which are based on actual events. John Grisham’s ‘The King of Torts’ shows the sleazy side of both the offending corporations and the greedy lawyers.
But even more important Class Actions are the only way to punish outrageous conduct on the part of big business by allowing private parties to exact punishment that may act as something of a deterrent against ongoing or even future anti-social and in many cases murderous conduct. It allows private parties to act, where government authorities fail to defend and protect the public.
On the other hand Class Actions have become something of a scandal for many of us have been aware of, or been involved in class actions, which are settled with each member of the class getting nothing more than a small promotional discount coupon from the defendant, while the lawyers collect millions in fees as part of a settlement. Even then the actions serve a social purpose because whatever the offending party has to pay is a deterrent against abhorrent conduct.
But settlements that enrich lawyers while defendants are sold out, cry out for real reform. This, like so many other things that require real reform need to be identified by the Democratic Party, and solutions which keep the benefits, while addressing the abuses, need to be proposed and publicized. Otherwise Republicans will use the vacuum to propose “reforms” which throw out the baby with the bath water, or more accurately use abuses or failures as an excuse for legislation intended to protect rich malefactors from being brought to justice.
Similarly, Republicans have for years been pushing for more stringent bankruptcy laws because the banking industry has been clamoring for such laws arguing that the filing for bankruptcy by wage earners has been on the rise. That bankruptcies by the middle class have indeed been on the rise is indisputable, but what is also indisputable is the cause. Banks in an effort to increase their bottom lines have found a golden calf in credit cards.
It is almost an axiom that banks do not extend credit except to credit worthy clients. However, this fundament of banking practice has been negated by interest rates which together with penalties have brought such a high rate of return to banks that their profits more than make up for a substantial default rate. Most people probably assume that we have usury laws. There is no Federal usury law. Before 1978, 37 states had usury laws that capped rates at 18%, a pretty exorbitant rate, and the law that applied was that of the state of the consumer, but in 1978 the Supreme Court held the laws that applied were the laws of the bank’s home state. Banks promptly moved to states without usury laws and now it is not unheard of for banks to charge up to 34% on some credit cards and they can even raise the rate while a debt is outstanding. In addition they encourage people to pay a minimum against their principal thus assuring that the lender will fall deeper and deeper into debt and the banks will keep increasing their profits. In addition, if one payment is missed (and the banks keep sending their statements out later and later, thus shortening the grace period) a penalty of up to $39. - in late fees is often charged on top of the interest. (A summary of the history and practices is appended as a PDF document, entitled Industry Practices.)
Have Democrats made an issue of this. Have they loudly advocated a Federal usury law? I haven’t heard of it, if they have. Even in New York State the law sets the interest limit at 21%, but that hardly matters, because banks can simply do their forum shopping to states that have no limit. In my opinion a federal law that would cap rates at prime plus 5% would make lots of sense and would stop banks from seeking customers who they know cannot afford the loans that they are being enticed into.
Instead the banking industry has a compliant Congress, which passes bankruptcy “reform” so that the entrapped can rarely escape. This is penalizing the victim and rewarding the usurer. To make it worse, it exempts from the law those with substantial assets who can set up a trust in one of five states and assets put in that trust are protected. Or as the NY Times reported:
There is a big, gaping loophole for wealthy Americans in the bill:
"The loophole involves the use of so-called asset protection trusts. For years, wealthy people looking to keep their money out of the reach of domestic creditors have set up these trusts offshore. But since 1997, lawmakers in five states -- Alaska, Delaware, Nevada, Rhode Island and Utah -- have passed legislation exempting assets held domestically in such trusts from the federal bankruptcy code. People who want to establish trusts do not have to reside in the five states; they need only set their trust up through an institution in one of them."
Which brings me to Tort reform, which is another of the many programs our President has been pushing. He appears to be on the verge of succeeding. It’s a problem that cries out for a solution. But the President’s solution as usual strikes at the consumer and not at the problem, and the Democrats are against it, but have no program of their own.
Next time, which will be in about three weeks, I will discuss Tort reform in greater detail
First we must realize that the Republican agenda is far more insidious than is generally realized. The program for Social Security is not simply to have private accounts. It is to abolish Social Security. (I will address this in greater detail at a future date.)
I believe the Bush program is not only to do away with a women’s right to choose but to do away with any and all birth control or any family planning. The Evangelicals and the Catholic Church have formed an alliance on this and it is powerful.
Furthermore, I believe that Bush and his allies in the Congress want nothing less than to do away with all the reforms that have been enacted since the Presidency of Theodore Roosevelt at the dawn of the 20th century. By that I mean doing away with all consumer protections, all labor protection and all environmental protection. But they are smart! They know that if they admitted to this being their program they would be out of office and out of power in a wink and without a prayer. So they keep identifying problems and then offer, “reforms“ which by their nature, do not solve the problem, but rather undermine the program. The longer they are in power the more the very foundations of these reforms will be undermined and a resurgence of progressive forces, if and when they come, will take decades to undo the damage. So comments about a swinging pendulum miss the seriousness of the situation. Nor do they focus on the suffering being inflicted on tens of thousands, or even millions of people in the meantime.
The only thing that stands between them and their objectives is the Democratic Party. It most certainly isn’t going to be a third party.
But the Democratic Party has become a Party without a program. All they do is oppose. They do not identify problems and they most certainly do not offer solutions. While we are all focused on the threat to Social Security, the President and his followers in the Congress are busy enacting less controversial legislation, which chips away piece by piece at the framework of our protections from an ever more greedy and rapacious business community. We must understand that the battle is not fought during election campaigns, but in between, when subtle and not so subtle public relations campaigns condition the public to favor their programs. Once the public is sufficiently conditioned Democrats can no longer oppose such programs if they are to win elections, and even if they win, they cannot fly in the face of public opinion.
While we are trying to stop the emasculation and ultimately the abolition of Social Security they have already enacted class action “reform” forcing such actions into the Federal Courts. This is indeed clever for on the face of it is difficult to object to important litigation residing in the Federal courts, thus preventing forum shopping (though Republicans do not seem concerned at forum shopping to avoid paying income taxes or forum shopping to get the best forum where they can get the lowest costs and charge the highest interests-see below) and placing the actions in a court staffed with judges, who by and large are more independent and more competent than most state court judges. What they do not tell us is that the Federal Courts have held that they will not certify class actions where a multiplicity of state laws are in conflict with each other. Thus, this apparently, harmless, “reform” deals the death knell to class actions to a very large degree.
Why are class actions important? Because they are the only means by which a large group of people who individually do not have the resources to take on the deep pockets of large corporations can obtain redress, as is so well shown in, e.g. Jonathan Harr’s book and the Disney movie, 'A Civil Action’ and even more strikingly in the movie, “Erin Brockovitch” both of which are based on actual events. John Grisham’s ‘The King of Torts’ shows the sleazy side of both the offending corporations and the greedy lawyers.
But even more important Class Actions are the only way to punish outrageous conduct on the part of big business by allowing private parties to exact punishment that may act as something of a deterrent against ongoing or even future anti-social and in many cases murderous conduct. It allows private parties to act, where government authorities fail to defend and protect the public.
On the other hand Class Actions have become something of a scandal for many of us have been aware of, or been involved in class actions, which are settled with each member of the class getting nothing more than a small promotional discount coupon from the defendant, while the lawyers collect millions in fees as part of a settlement. Even then the actions serve a social purpose because whatever the offending party has to pay is a deterrent against abhorrent conduct.
But settlements that enrich lawyers while defendants are sold out, cry out for real reform. This, like so many other things that require real reform need to be identified by the Democratic Party, and solutions which keep the benefits, while addressing the abuses, need to be proposed and publicized. Otherwise Republicans will use the vacuum to propose “reforms” which throw out the baby with the bath water, or more accurately use abuses or failures as an excuse for legislation intended to protect rich malefactors from being brought to justice.
Similarly, Republicans have for years been pushing for more stringent bankruptcy laws because the banking industry has been clamoring for such laws arguing that the filing for bankruptcy by wage earners has been on the rise. That bankruptcies by the middle class have indeed been on the rise is indisputable, but what is also indisputable is the cause. Banks in an effort to increase their bottom lines have found a golden calf in credit cards.
It is almost an axiom that banks do not extend credit except to credit worthy clients. However, this fundament of banking practice has been negated by interest rates which together with penalties have brought such a high rate of return to banks that their profits more than make up for a substantial default rate. Most people probably assume that we have usury laws. There is no Federal usury law. Before 1978, 37 states had usury laws that capped rates at 18%, a pretty exorbitant rate, and the law that applied was that of the state of the consumer, but in 1978 the Supreme Court held the laws that applied were the laws of the bank’s home state. Banks promptly moved to states without usury laws and now it is not unheard of for banks to charge up to 34% on some credit cards and they can even raise the rate while a debt is outstanding. In addition they encourage people to pay a minimum against their principal thus assuring that the lender will fall deeper and deeper into debt and the banks will keep increasing their profits. In addition, if one payment is missed (and the banks keep sending their statements out later and later, thus shortening the grace period) a penalty of up to $39. - in late fees is often charged on top of the interest. (A summary of the history and practices is appended as a PDF document, entitled Industry Practices.)
Have Democrats made an issue of this. Have they loudly advocated a Federal usury law? I haven’t heard of it, if they have. Even in New York State the law sets the interest limit at 21%, but that hardly matters, because banks can simply do their forum shopping to states that have no limit. In my opinion a federal law that would cap rates at prime plus 5% would make lots of sense and would stop banks from seeking customers who they know cannot afford the loans that they are being enticed into.
Instead the banking industry has a compliant Congress, which passes bankruptcy “reform” so that the entrapped can rarely escape. This is penalizing the victim and rewarding the usurer. To make it worse, it exempts from the law those with substantial assets who can set up a trust in one of five states and assets put in that trust are protected. Or as the NY Times reported:
There is a big, gaping loophole for wealthy Americans in the bill:
"The loophole involves the use of so-called asset protection trusts. For years, wealthy people looking to keep their money out of the reach of domestic creditors have set up these trusts offshore. But since 1997, lawmakers in five states -- Alaska, Delaware, Nevada, Rhode Island and Utah -- have passed legislation exempting assets held domestically in such trusts from the federal bankruptcy code. People who want to establish trusts do not have to reside in the five states; they need only set their trust up through an institution in one of them."
Which brings me to Tort reform, which is another of the many programs our President has been pushing. He appears to be on the verge of succeeding. It’s a problem that cries out for a solution. But the President’s solution as usual strikes at the consumer and not at the problem, and the Democrats are against it, but have no program of their own.
Next time, which will be in about three weeks, I will discuss Tort reform in greater detail
Friday, February 18, 2005
Reagan, Unions and Welfare
On January 30, I circulated my last commentary, entitled, “What Reagan did and what the Democratic Party should have done.” I conclude with, “Next time: Reagan and the Air traffic controllers strike, Clinton and “the end of welfare as we know it”, and Bush initiatives and Democratic ineffective responses.”
In discussing the Air traffic controllers’ strike I must refer you back to my comments in “Why this is so (Cont. 3) where I discussed the decline of the union movement and it’s falling into disrepute. In addition to the issue of featherbedding, illegal strikes by public employees such as the subway strike to which I alluded, soured the public’s attitude. Thus, when the Air traffic controllers struck in violation of the law to the great inconvenience of the traveling public there was outrage and when Reagan simply dismissed all the strikers, he was applauded by the bulk of the public for taking a courageous stand.
What the public never focused on was that the strikers were striking not for selfish ends but rather for better safety conditions to benefit the public. Furthermore, the punishment did not fit the crime. Normally, when a person is dismissed from a job, he can seek another job with another employer. This was not true for the controllers. There were no other employers for them but the federal government. Thus Reagan’s action totally deprived them of their livelihood. Had they been sent to jail for a number of years but then been allowed to resume their profession their punishment would have been less then what Reagan imposed on them. But no one came to their defense. Reagan was hailed for his firm position in the face of an illegal strike. It was a major event in the continuing demise of unionism and a further triumph for the surging rightist movement. The failure of liberals and the Democratic Party to speak out against this injustice was wrong both as a matter of principle and for the future of unions, liberalism and the Democratic Party.
Furthermore, Clinton and “The End of Welfare As We Know It,” was another serious miscalculation on the part of a Democratic Administration.
To understand this fully, we have to go back to the Reagan administration and understand that Welfare, or it’s main component, “Aid to Dependent Children” was part of the original Social Security Act.
While most may not remember it, for most of the years that Welfare was part of America’s safety net, it was accepted as a necessary program, for who would argue that a mother with young dependent children, who had no husband, either because the children were born out of wedlock or because the father/husband had deserted, should be left to starve. Pro-family forces strongly believed that a mother with minor children had two obligations. 1.) to be with them to rear and raise them as well as provide discipline and education and 2.) to see that they had housing, food and clothing.
As it became more and more common for both parents to enter the workforce the first reason began to have increasingly less appeal. What it ignored, however, was that in middle and upper class families there was always enough money to pay a nanny or at least a baby-sitter to look after the children. This was not true for the typical welfare mother, who invariably had no job skills and little education, and who could ill afford a baby-sitter, if she could find a job at all. However, as the dependent mother became a phenomenon for generation after generation many came to feel that his cycle of dependency had to be broken.
It was in this atmosphere that Reagan took the issue out of the realm of rational discussion and brought it skillfully into the realm of emotion and even race consciousness. Reagan, during one address, told of a “Welfare Queen” (I have no doubt that in the public’s eye she was black even though there were far more white people on Welfare than black) “who had ripped off $150,000 from the government, using 80 aliases, 30 addresses, a dozen social security cards, and four fictional dead husbands. The country was outraged; Reagan dutifully promised to roll back welfare; and ever since, the "Welfare Queen" driving her "Welfare Cadillac" has become permanently lodged in American political folklore.
Unfortunately, like most such anecdotes, it wasn't really true. The media searched for this welfare cheat in the hopes of interviewing her, and discovered that she didn't even exist.
As a bit of class warfare, however, it was brilliant. It diverted public attention from insider traders in their limousines to Welfare Queens in their Cadillacs, even though the former were stealing thousands of times more from the American people than the latter. Just one example of the cost of white collar crime would become apparent a few years later, when President Bush bailed out the Savings & Loans industry with $500 billion of the taxpayer's money -- enough to fund 20 years of federal AFDC.“ (Quoted from huppi.com.)
Yet Democrats made no concerted effort to debunk this story and so it has endured. In essence it became the opening gun in the Right’s effort to dismantle all of the safety net and shift the county’s wealth upwards toward the well to do and in effect the ruling class.
Instead Clinton made ending “Welfare, as we know it” a major part of his campaign pledges. This was not bad because even without the lies of Reagan, it was evident that there was a problem when generation after generation stayed on the “dole.” The Clinton plan, however, made adequate provisions for educational programs, for childcare and other support devices that would make the transition from welfare to work positive, rather than punitive. Unfortunately. Clinton did not grasp the political priorities demanded by the public and as his first order of business concentrated on his Health Care Plan. He failed to heed the urgent call of the Senator from New York, Daniel Patrick Moynihan, who proclaimed, that there is no health care crisis but there is a Welfare crisis.
The result was that Clinton lost on Health Care and worse, when he was ready to unveil his welfare plan, Republicans had won control of the Congress, and Clinton had lost the initiative. After a number of vetoes Clinton had to accept a Republican plan that was long on ending welfare, and short on the means and funding for it to also help welfare people out of poverty.
As appears to be the case over and over the Democrats cede the initiative to Republicans and allow them to set the agenda and the terms of the debate.
This is the case now, where Bush is being allowed to take the initiative and set the terms for the debate on bankruptcy, Class action, “Tort reform”, tax policy, the deficit, Social Security, Medicare and Medicaid, to mention a few.
Next time I will discuss these issues specifically, and set forth my views as to how Democrats ought to be approaching them.
In discussing the Air traffic controllers’ strike I must refer you back to my comments in “Why this is so (Cont. 3) where I discussed the decline of the union movement and it’s falling into disrepute. In addition to the issue of featherbedding, illegal strikes by public employees such as the subway strike to which I alluded, soured the public’s attitude. Thus, when the Air traffic controllers struck in violation of the law to the great inconvenience of the traveling public there was outrage and when Reagan simply dismissed all the strikers, he was applauded by the bulk of the public for taking a courageous stand.
What the public never focused on was that the strikers were striking not for selfish ends but rather for better safety conditions to benefit the public. Furthermore, the punishment did not fit the crime. Normally, when a person is dismissed from a job, he can seek another job with another employer. This was not true for the controllers. There were no other employers for them but the federal government. Thus Reagan’s action totally deprived them of their livelihood. Had they been sent to jail for a number of years but then been allowed to resume their profession their punishment would have been less then what Reagan imposed on them. But no one came to their defense. Reagan was hailed for his firm position in the face of an illegal strike. It was a major event in the continuing demise of unionism and a further triumph for the surging rightist movement. The failure of liberals and the Democratic Party to speak out against this injustice was wrong both as a matter of principle and for the future of unions, liberalism and the Democratic Party.
Furthermore, Clinton and “The End of Welfare As We Know It,” was another serious miscalculation on the part of a Democratic Administration.
To understand this fully, we have to go back to the Reagan administration and understand that Welfare, or it’s main component, “Aid to Dependent Children” was part of the original Social Security Act.
While most may not remember it, for most of the years that Welfare was part of America’s safety net, it was accepted as a necessary program, for who would argue that a mother with young dependent children, who had no husband, either because the children were born out of wedlock or because the father/husband had deserted, should be left to starve. Pro-family forces strongly believed that a mother with minor children had two obligations. 1.) to be with them to rear and raise them as well as provide discipline and education and 2.) to see that they had housing, food and clothing.
As it became more and more common for both parents to enter the workforce the first reason began to have increasingly less appeal. What it ignored, however, was that in middle and upper class families there was always enough money to pay a nanny or at least a baby-sitter to look after the children. This was not true for the typical welfare mother, who invariably had no job skills and little education, and who could ill afford a baby-sitter, if she could find a job at all. However, as the dependent mother became a phenomenon for generation after generation many came to feel that his cycle of dependency had to be broken.
It was in this atmosphere that Reagan took the issue out of the realm of rational discussion and brought it skillfully into the realm of emotion and even race consciousness. Reagan, during one address, told of a “Welfare Queen” (I have no doubt that in the public’s eye she was black even though there were far more white people on Welfare than black) “who had ripped off $150,000 from the government, using 80 aliases, 30 addresses, a dozen social security cards, and four fictional dead husbands. The country was outraged; Reagan dutifully promised to roll back welfare; and ever since, the "Welfare Queen" driving her "Welfare Cadillac" has become permanently lodged in American political folklore.
Unfortunately, like most such anecdotes, it wasn't really true. The media searched for this welfare cheat in the hopes of interviewing her, and discovered that she didn't even exist.
As a bit of class warfare, however, it was brilliant. It diverted public attention from insider traders in their limousines to Welfare Queens in their Cadillacs, even though the former were stealing thousands of times more from the American people than the latter. Just one example of the cost of white collar crime would become apparent a few years later, when President Bush bailed out the Savings & Loans industry with $500 billion of the taxpayer's money -- enough to fund 20 years of federal AFDC.“ (Quoted from huppi.com.)
Yet Democrats made no concerted effort to debunk this story and so it has endured. In essence it became the opening gun in the Right’s effort to dismantle all of the safety net and shift the county’s wealth upwards toward the well to do and in effect the ruling class.
Instead Clinton made ending “Welfare, as we know it” a major part of his campaign pledges. This was not bad because even without the lies of Reagan, it was evident that there was a problem when generation after generation stayed on the “dole.” The Clinton plan, however, made adequate provisions for educational programs, for childcare and other support devices that would make the transition from welfare to work positive, rather than punitive. Unfortunately. Clinton did not grasp the political priorities demanded by the public and as his first order of business concentrated on his Health Care Plan. He failed to heed the urgent call of the Senator from New York, Daniel Patrick Moynihan, who proclaimed, that there is no health care crisis but there is a Welfare crisis.
The result was that Clinton lost on Health Care and worse, when he was ready to unveil his welfare plan, Republicans had won control of the Congress, and Clinton had lost the initiative. After a number of vetoes Clinton had to accept a Republican plan that was long on ending welfare, and short on the means and funding for it to also help welfare people out of poverty.
As appears to be the case over and over the Democrats cede the initiative to Republicans and allow them to set the agenda and the terms of the debate.
This is the case now, where Bush is being allowed to take the initiative and set the terms for the debate on bankruptcy, Class action, “Tort reform”, tax policy, the deficit, Social Security, Medicare and Medicaid, to mention a few.
Next time I will discuss these issues specifically, and set forth my views as to how Democrats ought to be approaching them.
Sunday, January 30, 2005
What Reagan Did & What the Democratic Party Should Have Done
On January 11, I circulated my last commentary. I concluded with, “Next: What Reagan did and what the Democratic Party should have done.
In discussing what Reagan did, I could focus on the outrageous things he did such as creating a huge tax cut focused mostly on the rich, and creating a huge deficit which so shocked his budget director, David Stockman, that he resigned and wrote, “The Triumph of Politics” pointing out the irresponsibility of these policies. (Even at this late date the book is worth reading.)
What Stockman, however, failed to understand was that there was method to this madness. For years, the right, which before Reagan was not the uniform face of the Republican Party (The Republican Party in days of yore contained such liberals as Fiorello LaGuardia, Jack Javits and John Lindsey in New York, Senator Case in New Jersey and Senator Morse of Oregon to mention a few.) was intend on destroying the gains made during the Administration of Teddy Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman and Lyndon Johnson all of whom had put a check on the unbridled power of wealth, and created for 90% of the rest of the people a new empowerment through anti-trust laws, regulations of health, safety and the environment, working conditions, minimum wage, unemployment insurance, Social Security, Medicare and Medicaid to mention a few.
For years, repeated attempts had been made to eviscerate these programs but the public would have none of it. Now for the first time a new strategy was unfolding. Until then the cry was if we cut or abolish these programs we will be able to cut taxes. Now the motto was cut taxes, which is always popular even if the bulk of the cuts benefit few, and then faced with a crisis of debt make the cutting of programs a matter of fiscal necessity. (Democrats opposed these initiatives but they had no positive program in response. They feared the label, “The tax and spend party.)
These irresponsible tax-cutting measures were a clever plan but the country had not yet been sold on either, that large deficits could be sustained, or that cutting taxes would generate more revenue for the government. The famous Laffer curve turned out to be laughable and Bush’s pére’s claim during the previous primary that supply side economics was voodoo economics, seemed well founded. Reagan succumbed to the pressure and in 1982 an increase in taxes which repealed 1/3 of the previous reduction was signed by Reagan resulting in a boom and his overwhelming re-election vis a vis McGovern.
As the deficits grew Republican spinmeisters supported by the popular press continued to foster the misconception that Democrats were an irresponsible spendthrift party and that the deficit was not caused by Reagan tax cutting. A check of the facts reveals that The Democratic Congress during Reagan years authorized spending very close to what was called for in the Reagan budgets but with different priorities. It is also to be noted that during the Carter years spending as authorized by Congress was substantially below the period of the Reagan years. But Democrats, neither then nor now, seem inept at getting the truth out. Whether this is because of a press that has no interest in the truth, or because of Democratic ineptness is hard to determine. When the 1982 recession hit, Reagan blamed Carter and the popular press fostered this myth. To this day the myth of a highly successful Reagan administration is maintained and rarely challenged.
But the cleverness of Reagan and the ineptness of Democrats can best be found in two items that Reagan initiated. One was indexing, of tax rates. Democrats had always been the champions of a graduated income tax but inflation was pushing more and more middle class people into ever higher tax brackets thus undermining the principle of a graduated tax. Democrats never focused on this problem. Reagan who had no attachment to this principle, pushed through a clause in the tax code indexing tax brackets to inflation, and thereby became, in the eyes of the middle class, the man who protected them against creeping tax increases. This should have been a Democratic initiative but this like many others was too much to expect from a party that was suffering from arterial sclerosis and had run out of ideas.
During the Reagan years it became apparent that Social Security would face a crisis within a matter of decades unless fresh income injected into the system but it was on Reagan’s initiative that the cap on SS payroll taxes was raised, and taxes were increased on a portion of Social Security payments to people in the higher brackets, which was to be plowed back into the Social Security Trust fund, thus postponing the crisis date by decades. It should have been Democrats who were pushing for this but as I have said, Democrats have run out of ideas and initiatives. UNTIL DEMOCRATS STOP BEING THE PARTY OF CONSERVATISM AND AGAIN BECOME THE PARTY WITH SOLUTIONS, THE ASCENDANCY OF THE RADICAL RIGHT WILL CONTINUE AND ACCELERATE.
At the same time the Right has fostered a propaganda campaign that has gone on for decades that nothing can save Social Security and that the young are paying into a system from which they will never see a penny. A survey some years ago found that more young people believe in UFOs than believe they will ever see a penny from Social Security. In this kind of atmosphere it is no wonder that Bush, Jr. can work toward the abolition of Social Security and anybody who thinks that the present plan for private accounts is anything less than the first step toward that end is naïve.
The ineptness of the Democrats on this issue can best be seen by putting their emphasis on there being no immediate crisis. Well, it may not be immediate but it is looming and the sooner it is addressed the less painful it will be.
Kerry epitomized this paralysis when during the campaign he recognized a potential problem but then ruled out all possible solutions. He then suggested a commission to come up with a plan after he is elected. It is obvious that if an increase in taxes and a reduction in benefits are ruled out there is not much for a commission to do. But Kerry was busy pandering to his audience as he did when he opposed Yucca mountain in Nevada for which he had voted.
Bush is very good at identifying problems and then proposing solutions which would only exacerbate them, or abolish programs that need minor surgery. But Democrats and the American people will lose, until and unless, Democrats offer real alternatives and real solutions rather than only angry denunciations.
Next time: Reagan and the Air traffic controllers strike, Clinton and “the end of welfare as we know it”, and Bush initiatives and Democratic ineffective responses.
In discussing what Reagan did, I could focus on the outrageous things he did such as creating a huge tax cut focused mostly on the rich, and creating a huge deficit which so shocked his budget director, David Stockman, that he resigned and wrote, “The Triumph of Politics” pointing out the irresponsibility of these policies. (Even at this late date the book is worth reading.)
What Stockman, however, failed to understand was that there was method to this madness. For years, the right, which before Reagan was not the uniform face of the Republican Party (The Republican Party in days of yore contained such liberals as Fiorello LaGuardia, Jack Javits and John Lindsey in New York, Senator Case in New Jersey and Senator Morse of Oregon to mention a few.) was intend on destroying the gains made during the Administration of Teddy Roosevelt, Woodrow Wilson, Franklin Roosevelt, Harry Truman and Lyndon Johnson all of whom had put a check on the unbridled power of wealth, and created for 90% of the rest of the people a new empowerment through anti-trust laws, regulations of health, safety and the environment, working conditions, minimum wage, unemployment insurance, Social Security, Medicare and Medicaid to mention a few.
For years, repeated attempts had been made to eviscerate these programs but the public would have none of it. Now for the first time a new strategy was unfolding. Until then the cry was if we cut or abolish these programs we will be able to cut taxes. Now the motto was cut taxes, which is always popular even if the bulk of the cuts benefit few, and then faced with a crisis of debt make the cutting of programs a matter of fiscal necessity. (Democrats opposed these initiatives but they had no positive program in response. They feared the label, “The tax and spend party.)
These irresponsible tax-cutting measures were a clever plan but the country had not yet been sold on either, that large deficits could be sustained, or that cutting taxes would generate more revenue for the government. The famous Laffer curve turned out to be laughable and Bush’s pére’s claim during the previous primary that supply side economics was voodoo economics, seemed well founded. Reagan succumbed to the pressure and in 1982 an increase in taxes which repealed 1/3 of the previous reduction was signed by Reagan resulting in a boom and his overwhelming re-election vis a vis McGovern.
As the deficits grew Republican spinmeisters supported by the popular press continued to foster the misconception that Democrats were an irresponsible spendthrift party and that the deficit was not caused by Reagan tax cutting. A check of the facts reveals that The Democratic Congress during Reagan years authorized spending very close to what was called for in the Reagan budgets but with different priorities. It is also to be noted that during the Carter years spending as authorized by Congress was substantially below the period of the Reagan years. But Democrats, neither then nor now, seem inept at getting the truth out. Whether this is because of a press that has no interest in the truth, or because of Democratic ineptness is hard to determine. When the 1982 recession hit, Reagan blamed Carter and the popular press fostered this myth. To this day the myth of a highly successful Reagan administration is maintained and rarely challenged.
But the cleverness of Reagan and the ineptness of Democrats can best be found in two items that Reagan initiated. One was indexing, of tax rates. Democrats had always been the champions of a graduated income tax but inflation was pushing more and more middle class people into ever higher tax brackets thus undermining the principle of a graduated tax. Democrats never focused on this problem. Reagan who had no attachment to this principle, pushed through a clause in the tax code indexing tax brackets to inflation, and thereby became, in the eyes of the middle class, the man who protected them against creeping tax increases. This should have been a Democratic initiative but this like many others was too much to expect from a party that was suffering from arterial sclerosis and had run out of ideas.
During the Reagan years it became apparent that Social Security would face a crisis within a matter of decades unless fresh income injected into the system but it was on Reagan’s initiative that the cap on SS payroll taxes was raised, and taxes were increased on a portion of Social Security payments to people in the higher brackets, which was to be plowed back into the Social Security Trust fund, thus postponing the crisis date by decades. It should have been Democrats who were pushing for this but as I have said, Democrats have run out of ideas and initiatives. UNTIL DEMOCRATS STOP BEING THE PARTY OF CONSERVATISM AND AGAIN BECOME THE PARTY WITH SOLUTIONS, THE ASCENDANCY OF THE RADICAL RIGHT WILL CONTINUE AND ACCELERATE.
At the same time the Right has fostered a propaganda campaign that has gone on for decades that nothing can save Social Security and that the young are paying into a system from which they will never see a penny. A survey some years ago found that more young people believe in UFOs than believe they will ever see a penny from Social Security. In this kind of atmosphere it is no wonder that Bush, Jr. can work toward the abolition of Social Security and anybody who thinks that the present plan for private accounts is anything less than the first step toward that end is naïve.
The ineptness of the Democrats on this issue can best be seen by putting their emphasis on there being no immediate crisis. Well, it may not be immediate but it is looming and the sooner it is addressed the less painful it will be.
Kerry epitomized this paralysis when during the campaign he recognized a potential problem but then ruled out all possible solutions. He then suggested a commission to come up with a plan after he is elected. It is obvious that if an increase in taxes and a reduction in benefits are ruled out there is not much for a commission to do. But Kerry was busy pandering to his audience as he did when he opposed Yucca mountain in Nevada for which he had voted.
Bush is very good at identifying problems and then proposing solutions which would only exacerbate them, or abolish programs that need minor surgery. But Democrats and the American people will lose, until and unless, Democrats offer real alternatives and real solutions rather than only angry denunciations.
Next time: Reagan and the Air traffic controllers strike, Clinton and “the end of welfare as we know it”, and Bush initiatives and Democratic ineffective responses.
Tuesday, January 11, 2005
Why This Is So! (continued III)
I concluded my last installment with, “Next time, how Reagan takes the Republican Party and the country to the right and makes this respectable, as Democrats have no answer and as the Union movement crumbles.
When the country elected Reagan I think few realized what a radical departure this constituted for the country. During all the years of Democratic ascendancy the Republican Party for the most part did not take serious issue with the direction the Democrats were taking the country. To be sure, there were many of wealth who looked upon both Roosevelts as traitors to their class and dreamed of undoing all that they stood for and all they had accomplished. But the Republican Party knew that such a position would be political suicide and so basically ran on platforms that only opposed Democratic reforms on the periphery. They argued that they wanted to do the same thing only they could do it better. They opposed some measures because ”they went too far”; they opposed others on the basis of defending states rights, they opposed others on the basis that they were too expensive and therefore fiscally irresponsible, but they never opposed the basic concept of the welfare state and that the government had a responsibility to provide a safety net, to protect the environment and to treat working people as something other than a component of industry to be treated no different than a widget.
In other words they ran as Democrats light or as some dubbed it, “The Me Too Party. They did make some viscous attacks on Democrats, which in the short run did little damage but in the long took its toll. Beginning as early as 1947 they began a campaign to weaken the Labor movement when they passed the Taft-Hartley Act over Truman’s veto. They attacked Democrats as being, “soft on communism” and Joe McCarthy as the leader of the red baiting Republicans dubbed the Democratic Party as the Democrat Party, a label that has stuck to this day. They accused Democrats of having lost China to communism and being anti-defense.
At the same time they recognized that they had no intellectual base and while attacking intellectuals as eggheads, they systematically formed think tanks so that today right-wing think tanks outnumber liberal ones by a significant multiple.
They vowed that newscasts would be more too their liking or they would buy them and in time all three major networks were bought by large corporations and they formed their own network and cable news channel, i.e. Fox. They took over radio as their propaganda organ.
But until Goldwater came along they didn’t represent a true alternative to the Democratic Party initiatives. Goldwater brought the party sharply to the right but in doing so he gave the Party an identity and a passion that it never had before. Goldwater was defeated in a landslide, but he gave the party passion and purpose, which Reagan inherited and exploited. This was not true of the McGovern candidacy, which only served to strengthen stereotypes of Democrats as being, in the words of Spiro Agnew, “effete.”
At the same time the Union movement, which at one time had the almost universal support of the American people, was losing its image as the bulwark of all working people. At the height of the Union movement few people would cross a picket line. Unfortunately, the image of unions over the years, fairly or not, became of groups that supported featherbedding and had contempt for the public. This was exemplified by the by the strike waged by the Transport Workers Union in 1966, who went out on strike days before the new Mayor, John Lindsay, was sworn in and tied up public transportation for 12 days. Today unions are associated more with wealthy sports figures than with ordinary laboring people and union membership which reached its peak at about 35% of the total work force in 1945, declined to about 15% by 1995 and has held steady at that level for the past ten years. While the reasons for this decline are varied its effect on the Democratic Party and the progressive movement has been negative.
At least as important it appears that after Humphrey’s defeat by Nixon in 1969 The Democratic Party showed itself as a party that no longer had a real agenda. Whatever significant progress which was made thereafter was done by the Supreme Court (e.g. See Roe vs. Wade 1973) and the Democratic Party essentially became a conservative party fighting to keep the status quo, as a backlash against many of the achievements of the Great Society gathered steam.
Next: What Reagan did and what the Democratic Party should have done.
When the country elected Reagan I think few realized what a radical departure this constituted for the country. During all the years of Democratic ascendancy the Republican Party for the most part did not take serious issue with the direction the Democrats were taking the country. To be sure, there were many of wealth who looked upon both Roosevelts as traitors to their class and dreamed of undoing all that they stood for and all they had accomplished. But the Republican Party knew that such a position would be political suicide and so basically ran on platforms that only opposed Democratic reforms on the periphery. They argued that they wanted to do the same thing only they could do it better. They opposed some measures because ”they went too far”; they opposed others on the basis of defending states rights, they opposed others on the basis that they were too expensive and therefore fiscally irresponsible, but they never opposed the basic concept of the welfare state and that the government had a responsibility to provide a safety net, to protect the environment and to treat working people as something other than a component of industry to be treated no different than a widget.
In other words they ran as Democrats light or as some dubbed it, “The Me Too Party. They did make some viscous attacks on Democrats, which in the short run did little damage but in the long took its toll. Beginning as early as 1947 they began a campaign to weaken the Labor movement when they passed the Taft-Hartley Act over Truman’s veto. They attacked Democrats as being, “soft on communism” and Joe McCarthy as the leader of the red baiting Republicans dubbed the Democratic Party as the Democrat Party, a label that has stuck to this day. They accused Democrats of having lost China to communism and being anti-defense.
At the same time they recognized that they had no intellectual base and while attacking intellectuals as eggheads, they systematically formed think tanks so that today right-wing think tanks outnumber liberal ones by a significant multiple.
They vowed that newscasts would be more too their liking or they would buy them and in time all three major networks were bought by large corporations and they formed their own network and cable news channel, i.e. Fox. They took over radio as their propaganda organ.
But until Goldwater came along they didn’t represent a true alternative to the Democratic Party initiatives. Goldwater brought the party sharply to the right but in doing so he gave the Party an identity and a passion that it never had before. Goldwater was defeated in a landslide, but he gave the party passion and purpose, which Reagan inherited and exploited. This was not true of the McGovern candidacy, which only served to strengthen stereotypes of Democrats as being, in the words of Spiro Agnew, “effete.”
At the same time the Union movement, which at one time had the almost universal support of the American people, was losing its image as the bulwark of all working people. At the height of the Union movement few people would cross a picket line. Unfortunately, the image of unions over the years, fairly or not, became of groups that supported featherbedding and had contempt for the public. This was exemplified by the by the strike waged by the Transport Workers Union in 1966, who went out on strike days before the new Mayor, John Lindsay, was sworn in and tied up public transportation for 12 days. Today unions are associated more with wealthy sports figures than with ordinary laboring people and union membership which reached its peak at about 35% of the total work force in 1945, declined to about 15% by 1995 and has held steady at that level for the past ten years. While the reasons for this decline are varied its effect on the Democratic Party and the progressive movement has been negative.
At least as important it appears that after Humphrey’s defeat by Nixon in 1969 The Democratic Party showed itself as a party that no longer had a real agenda. Whatever significant progress which was made thereafter was done by the Supreme Court (e.g. See Roe vs. Wade 1973) and the Democratic Party essentially became a conservative party fighting to keep the status quo, as a backlash against many of the achievements of the Great Society gathered steam.
Next: What Reagan did and what the Democratic Party should have done.
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